GUARANTY OF PAYMENT
DATE: June 13, 1994
PARTIES: GUARANTOR: M.D.C. HOLDINGS, INC., a Delaware
corporation
GUARANTOR 3600 South Yosemite, Suite 900
ADDRESS: Denver, Colorado 80237
Attn: Vice President - Treasury
Department
with a
copy to: 3600 South Yosemite, Suite 900
Denver, Colorado 80237
Attn: General Counsel
BANK: BANK ONE, ARIZONA, NA,
a national banking association
BANK P.O. Box 29542
ADDRESS: Phoenix, Arizona 85038
Attention: Dept. A-383
AGREEMENT: For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Guarantor agrees for the benefit of Bank as
follows:
SCHEDULE OF TERMS.
Borrowers: RICHMOND AMERICAN HOMES OF CALIFORNIA, INC., a Colorado
corporation
RICHMOND HOMES, INC. I, a Delaware corporation
RICHMOND HOMES, INC. II, a Delaware corporation
RICHMOND AMERICAN HOMES, INC., a Delaware corporation
RICHMOND AMERICAN HOMES OF NEVADA, INC., a Colorado
corporation
Borrower Obligations:
Promissory note, dated of even date herewith, of Borrowers
payable to Bank, in the original principal amount of
$75,000,000.00, as it may be amended, modified, extended,
renewed, restated, or supplemented from time to time.
2. DEFINITIONS. In this Guaranty, the following terms shall have the
following meanings:
"ADVANCES" shall have the meaning set forth in the Loan Agreement.
"A.R.S." means Arizona Revised Statutes, as amended from time to time. Each
reference to any provision in A.R.S. shall be a reference to any successor or
replacement provision.
"BORROWERS" means the Persons specified in SECTION 1, "BORROWER" means any of
the Borrowers.
"BORROWER OBLIGATIONS" means the following:
(i) Payment of principal, interest, costs, expenses, fees, and other
amounts under the promissory note of Borrowers payable to Bank described in
SECTION 1, as such principal amount may be increased from time to time by any
additional advances in excess of the original principal amount thereof or as the
result of any accrued and unpaid interest becoming principal under the Note;
(ii) Payment of each Reimbursement Amount;
(iii) Payment of all other amounts payable from time to time by each
and all Borrowers under the Loan Documents.
"COLLATERAL" means any and all property, interests in property, and rights to
property from time to time securing any or all Obligations.
"COMMITMENT" means any and all obligations of Bank from time to time to make
advances to any Borrower, to issue letters of credit requested by any Borrower,
or to make other financial accommodations for any Borrower.
"COVENANT RELATING TO OTHER DEBT" means Guarantor's covenant set forth in
SECTION 5.6 of this Guaranty.
"DEBT" has the meaning set forth in the Loan Agreement.
"DEFAULT RATE" means a rate per annum of interest equal to the sum of (i) four
percent (4%) per annum, and (ii) the Interest Rate in effect prior to a default
or an event of default under the promissory note described in SECTION 1.
"DIVIDENDS" means with respect to any Person (i) any dividend or other
distribution on any shares of such Person's capital stock, (ii) any purchase,
retirement or redemption of any shares of such Person's capital stock, or
(iii) any other distribution, by reduction of capital or otherwise, in respect
of such Person's capital stock.
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"ENVIRONMENTAL AGREEMENTS" has the meaning set forth in the Loan Agreement.
"EVENT OF DEFAULT" means the occurrence of an Event of Default in any Loan
Document.
"FINANCIAL COVENANT" means Guarantor's covenant set forth in SECTION 5.5 of this
Guaranty.
"GAAP" has the meaning set forth in the Loan Agreement.
"GOVERNMENTAL AUTHORITY" means any government, any court, and any agency,
authority, body, bureau, department, or instrumentality of any government.
"GUARANTOR" means the Person that has executed this Guaranty.
"GUARANTOR DOCUMENTS" means this Guaranty and the Environmental Agreements
executed by Guarantor.
"GUARANTOR OBLIGATIONS" means the obligations of Guarantor under the Guarantor
Documents.
"GUARANTY" means this Guaranty, as it may be amended, modified, extended,
renewed, restated, and supplemented from time to time.
"INTANGIBLE ASSETS" has the meaning set forth in the Loan Agreement.
"LIEN OR ENCUMBRANCE" and "LIENS AND ENCUMBRANCES" mean, respectively, each and
all assignments as security, grants in trust, liens, mortgages, security
interests, other encumbrances, and other interests and rights from time to time
securing any or all of the Obligations.
"LOAN AGREEMENT" means the Loan Agreement, dated of even date herewith, between
Borrowers and Bank, as it may be amended, modified, extended, renewed, restated,
or supplemented from time to time.
"LOAN DOCUMENTS" has the meaning set forth in the Loan Agreement.
"MATERIAL ADVERSE CHANGE" means any change in the assets, financial condition,
or results of operations of Guarantor or any other event or condition that in
the reasonable opinion of Bank (i) could affect the likelihood of performance by
Guarantor of any of the Guarantor Obligations, (ii) could affect the ability of
Guarantor to perform any of the Guarantor Obligations, or (iii) could affect the
legality, validity, or binding nature of any of the Guarantor Obligations.
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"OBLIGATIONS" means the Borrower Obligations, the obligations of Borrower under
the Environmental Agreements and the Guarantor Obligations.
"PERSON" means a natural person, a partnership, a joint venture, an
unincorporated association, a limited liability company, a corporation, a trust,
any other legal entity, or any Governmental Authority.
"PROJECT" has the meaning set forth in the Deed of Trust.
"REIMBURSEMENT AMOUNT" has the meaning set forth in the Loan Agreement.
"SUBSIDIARY" has the meaning set forth in the Loan Agreement.
"TANGIBLE NET WORTH" means the sum of all capital accounts (including, without
limitation, any paid-in capital, capital surplus, and retained earnings), less
the sum of (i) the value on Guarantor's books of all Intangible Assets, and
(ii) loans and advances to directors, officers and employees of Guarantor but
excluding any arms-length mortgage loans made by any Subsidiary of Guarantor in
the ordinary course of such Subsidiary's business, and excluding any advances
made to employees in the ordinary course of business for travel and other items.
3. GUARANTY. Guarantor unconditionally and irrevocably guarantees the full
payment when due, by acceleration or otherwise, of each and all Borrower
Obligations, including the payment of the indebtedness evidenced thereunder, and
promises to pay when due, by acceleration or otherwise, each and all Borrower
Obligations. Guarantor agrees that immediately upon the failure in payment when
due of any or all Borrower Obligations, Guarantor will pay to Bank the full
amount of such Borrower Obligations. All payments under this Guaranty shall be
made to Bank in lawful money of the United States of America at the address of
Bank at the beginning of this Guaranty or such other location in the continental
United States as Bank may designate in writing. Any amount payable under this
Guaranty not paid when due and any judgment for such an amount and interest
thereon shall bear interest at the Default Rate from the due date or such
judgment date, respectively, until such amount and interest thereon are paid in
full. Guarantor agrees to pay such interest on demand. All Guarantor
Obligations will be paid by Guarantor without counterclaim (provided that they
are not mandatory under the applicable rules of procedure), deduction, defense
(provided that Guarantor does not hereby waive any bona fide defense regarding
the failure of any Borrower to pay any of the Borrower Obligations or any of
such Borrower's or Guarantor's obligations under the Environmental Agreements),
deferment, reduction, or set-off.
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4. GUARANTOR REPRESENTATIONS AND WARRANTIES.
4.1 CLOSING REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants to Bank as of the date of this Agreement:
4.1.1 CORPORATE EXISTENCE AND AUTHORIZATION. Guarantor is a
validly existing corporation in good standing under the laws of the jurisdiction
of its formation or organization and under the jurisdiction of each state where
the conduct of its business requires such existence and good standing and has
the requisite power and authority to execute, deliver, and perform the Guarantor
Documents. The execution, delivery, and performance by Guarantor of the
Guarantor Documents have been duly authorized by all requisite action by or on
behalf of Guarantor and will not conflict with, or result in a violation of or a
default under, the certificate of incorporation and bylaws of Guarantor.
4.1.2 EXECUTION AND DELIVERY AND BINDING NATURE OF GUARANTOR
LOAN DOCUMENTS. The Guarantor Documents have been duly executed and delivered
by or on behalf of Guarantor. The Guarantor Documents are legal, valid, and
binding obligations of Guarantor, enforceable in accordance with their terms
against Guarantor, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization, or similar laws and by equitable
principles of general application.
4.1.3 ACCURATE INFORMATION. All information in any loan
application, financial statement, certificate, or other document, and all other
information previously delivered to Bank by or on behalf of Guarantor in
connection with this Guaranty was correct and complete in all material respects
as of the date thereof, and there were no omissions therefrom that result in any
such information being incomplete, incorrect, or misleading in any material
respect as of the date thereof. All financial statements heretofore delivered
to Bank by Guarantor were prepared in accordance with the requirements
prescribed by Bank and accurately present the financial condition and results of
operations in all material respects as at the dates thereof and for the periods
covered thereby.
4.1.4 NO CHANGE. There has been no Material Adverse Change as
to Guarantor since the date of the information provided pursuant to SECTION
4.1.3.
4.1.5 LEGAL PROCEEDINGS; HEARINGS, INQUIRIES, AND
INVESTIGATIONS. Except as disclosed to Bank in writing prior to the date of
this Agreement, (i) no legal proceeding is pending or, to best knowledge of
Guarantor, threatened before any arbitrator, other private adjudicator, or
Governmental Authority to which Guarantor is a party or by which Guarantor or
any assets or property of Guarantor may be bound or affected that if resolved
adversely to Guarantor could result in a Material Adverse Change,
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and (ii) no hearing, inquiry, or investigation relating to Guarantor or any
assets or property of Guarantor is pending or, to the best knowledge of
Guarantor, threatened by any Governmental Authority that if resolved adversely
to Guarantor could result in a Material Adverse Change.
4.1.6 TAXES. Guarantor has filed or caused to be filed all tax
returns (federal, state, or local) required to be filed by Guarantor and has
paid all taxes and other amounts shown thereon to be due (including, without
limitation, any interest or penalties).
4.1.7 INFORMATION ABOUT BORROWER AND TRANSACTION. Guarantor
understands the Borrower Obligations and the Guarantor Obligations and has had
access to information about the financial condition of each Borrower and the
ability of each Borrower to perform the Borrower Obligations.
4.1.8 INDUCEMENT. Guarantor is providing this Guaranty at the
request of Borrowers in order to induce Bank to extend or continue financial
accommodations to Borrowers.
4.2 REPRESENTATIONS AND WARRANTIES UPON DELIVERY OF FINANCIAL STATEMENTS,
DOCUMENTS, AND OTHER INFORMATION. Each delivery by Guarantor to Bank of
financial statements, other documents, or information after the date of this
Guaranty shall be a representation and warranty that such financial statements,
other documents, or information is correct and complete in all material respects
as of the date thereof, that there are no omissions therefrom that result in
such financial statements, other documents, or information being incomplete,
incorrect, or misleading in any material respect as of the date thereof, and
that such financial statements accurately present the financial condition and
results of operations of Guarantor as at the dates thereof and for the periods
covered thereby.
5. GUARANTOR COVENANTS. Until any Commitment terminates in full, any letters
of credit issued by Bank for any Borrower expire or are drawn in full, any
drafts drawn or drawn and accepted under any such letters of credit are paid in
full, and until the Borrower Obligations and the obligations of Guarantor under
this Guaranty are paid and performed in full, Guarantor agrees that, unless Bank
otherwise agrees in writing in Bank's absolute and sole discretion:
5.1 CORPORATE, LIMITED LIABILITY COMPANY, OR PARTNERSHIP EXISTENCE. If
Guarantor is a corporation, a limited liability company, or a partnership,
Guarantor shall continue to be validly existing, and in the case of a
corporation or a limited liability company in good standing, under the law of
the jurisdiction of its organization or formation, and under the law of each
jurisdiction where the conduct of its business requires such existence and good
standing. Guarantor shall not be dissolved or liquidated. Guarantor shall not
amend, modify, restate, supplement, or
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terminate its certificate of incorporation or bylaws in any manner that would
materially affect the validity or enforceability of the Obligations. Guarantor
shall not reorganize itself or consolidate with or merge into any other
corporation or permit any other corporation to be merged into such Guarantor
(except for mergers of any Subsidiary of Guarantor or any other Person into
Guarantor pursuant to which Guarantor is the surviving entity, and which do not
in any event otherwise constitute an Event of Default or a breach of any of
Guarantor's covenants, representations or warranties in this Guaranty).
5.2 INFORMATION AND STATEMENTS. Guarantor shall furnish to Bank the
financial statements and other information required with respect to Guarantor
under the Loan Agreement, including, without limitation, complete and accurate
records evidencing transfers of funds between Borrower to Guarantor.
5.3 TAXES. Except for taxes being contested in good faith and for which
adequate reserves are maintained as required by GAAP, Guarantor shall pay before
delinquency all taxes, assessments, and governmental charges and levies imposed
upon Guarantor, upon Guarantor's income or profits, or upon any property
belonging to Guarantor.
5.4 KEEPING INFORMED ABOUT BORROWER AND TRANSACTION. Guarantor will keep
itself informed concerning performance of the Borrower Obligations, the
financial condition of each Borrower, and the ability of each Borrower to
perform the Borrower Obligations.
5.5 TANGIBLE NET WORTH COVENANT. Initially, Guarantor shall maintain at
all times Tangible Net Worth in an amount not less than $144,000,000.00.
Commencing on January 1, 1995 and continuing on January 1 of each year
thereafter, the minimum Tangible Net Worth required herein shall be increased
(but never decreased) by a number that is one-half of Guarantor's annual net
income for the preceding calendar year, as determined in accordance with GAAP,
but excluding therefrom the impact of accounting changes.
5.6 COVENANT RELATING TO OTHER DEBT. Guarantor will not suffer to occur
any condition or event that is a default or is designated as a default, an event
of default, or an Event of Default in any other instrument, document or
agreement relating to any Debt (whether now existing or hereafter created) of
any Borrower or Guarantor to any other Person in a principal amount of
$500,000.00 or more (but not more than $5,000,000.00) and the expiration of any
contractual cure or grace periods with respect to such occurrence, including,
without limitation, any event of default under or in connection with the Senior
Notes or Convertible Subordinated Notes (as defined in the Loan Agreement) or
any indenture or guaranty executed in connection therewith; PROVIDED, HOWEVER,
for purposes of this paragraph and SECTION 5.7 only, the term "DEBT" shall
exclude any Nonrecourse Debt. "NONRECOURSE DEBT"
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shall mean indebtedness secured by a lien on property of any Borrower or
Guarantor, if and only if the liability for such indebtedness (and any interest
thereon) is limited to the security of such Borrower's or Guarantor's rights in
such property and its income and rents, without direct or indirect liability on
the part of such Borrower or Guarantor or any Affiliate of Borrower or Guarantor
for such indebtedness. "AFFILIATE" means any and all Subsidiaries of Guarantor,
including each Borrower.
5.7 GREATER INDEBTEDNESS. Neither Guarantor nor Borrower has received a
notice declaring a default or an event of default, or an Event of Default from
the holder under any other instrument, document or agreement (including without
limitation any indenture or guaranty executed in connection with the Senior
Notes or the Convertible Subordinated Notes) relating to any Other Debt and (i)
any contractual cure or grace periods with respect thereto have expired, and/or
(ii) the holder of such Other Debt has accelerated such Other Debt, and/or (iii)
the holder thereof has commenced exercising its remedies in connection
therewith. For purposes hereof, "OTHER DEBT" means any Debt (whether now
existing or hereafter created) of any Borrower or Guarantor to any other Person
in a principal amount of more than $5,000,000.00, and shall include without
limitation the Senior Notes and the Convertible Subordinated Notes.
5.8 NOTIFICATION OF DEFAULTS. Guarantor shall immediately disclose to
Bank the occurrence of any default by Guarantor under or pursuant to the terms
and conditions of any indebtedness in excess of $500,000.00 owed by Guarantor to
any Person, whether now existing or hereafter arising.
5.9 CHANGE IN MANAGEMENT. Guarantor shall not suffer to occur any change
in Guarantor's chairman and chief executive officer (other than a change due to
death or disability of the then existing chairman and chief executive officer)
without the prior written consent of Bank in its absolute and sole discretion.
In the event of any change in Guarantor's chairman and chief executive officer
due to death or disability of the then existing chairman and chief executive
officer, Guarantor will not appoint or elect a replacement without the prior
written consent of Bank in its reasonable discretion.
5.10 LIMITATION ON DIVIDENDS. Guarantor will not, directly or indirectly,
make or declare any Dividend, if, after giving effect thereto an Event of
Default shall have occurred and be continuing.
6. SPECIAL PROVISIONS.
6.1 NATURE OF GUARANTY. This Guaranty is absolute, continuing,
irrevocable, and unconditional. This Guaranty is a guaranty of payment and
performance when due and not of collection. This Guaranty shall be effective
and remain in full force and
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effect until any Commitment terminates, any letters of credit issued by Bank for
any Borrower expire or are drawn in full, any drafts drawn or drafts drawn and
accepted under any such letters of credit are paid in full, and all Obligations
are paid in full, regardless of (i) the genuineness, regularity, legality,
validity, or enforceability of any or all of the Liens and Encumbrances, the
Loan Documents, this Guaranty, or the Obligations, (ii) any law, regulation, or
rule (federal, state, or local) or any action by any Governmental Authority
discharging, reducing, varying the terms of payment, or otherwise modifying any
of the Obligations or any of the Liens and Encumbrances, or (iii) the
dissolution or liquidation of any Borrower or Guarantor.
6.2 ENFORCEMENT AGAINST GUARANTOR WITHOUT OTHER ACTION. Bank may enforce
the Guarantor Documents against any Guarantor without first having sought
enforcement of any Loan Documents or Environmental Agreements against any
Borrower, any other Guarantor, or any Collateral.
6.3 EVENTS NOT AFFECTING GUARANTOR OBLIGATIONS OR LIENS AND ENCUMBRANCES
GRANTED BY GUARANTOR. The following shall not affect, impair, or delay the
enforcement of any or all Guarantor Obligations or any or all Liens and
Encumbrances granted by Guarantor, regardless of the impact upon any
contribution, exoneration, indemnification, reimbursement, subrogation, and
other rights of Guarantor:
6.3.1 The bankruptcy, dissolution, insolvency, liquidation, or
reorganization of any or all Borrowers or Guarantor.
6.3.2 Any defense of any or all Borrowers or Guarantor to payment or
performance of any or all Obligations or enforcement of any or all Liens and
Encumbrances (other than a bona fide dispute regarding the failure of any or all
Borrowers or Guarantor to perform any of the Obligations).
6.3.3 The discharge, modification of the terms of, reduction in the
amount of, or stay of enforcement of any or all Liens and Encumbrances or any or
all Obligations (except with respect to such specific Guarantor Obligations) in
any bankruptcy, insolvency, reorganization, or other legal proceeding or by any
law, ordinance, regulation, or rule (federal, state, or local).
6.3.4 The cessation of liability of any or all Borrowers for any or
all Obligations.
6.4 ACTS AND OMISSIONS OF BANK NOT AFFECTING GUARANTOR OBLIGATIONS OR
LIENS AND ENCUMBRANCES GRANTED BY GUARANTOR. Bank may do the following acts and
omissions from time to time in its absolute and sole discretion and in doing
such acts and omissions act in its absolute and sole discretion without notice
to or
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consent of Guarantor and with or without receiving payment or other value. The
following acts and omissions shall not affect, delay, or impair any or all
Guarantor Obligations or any or all Liens and Encumbrances granted by any
Borrower or Guarantor, regardless of the impact upon any contribution,
exoneration, indemnification, reimbursement, subrogation, and other rights of
Guarantor:
6.4.1 Bank may obtain Collateral or additional Collateral.
6.4.2 Bank may substitute for any or all Collateral, regardless of
whether the same type or greater or lesser value.
6.4.3 Bank may release any or all Collateral.
6.4.4 Bank may compromise, delay enforcement, fail to enforce,
release, settle, or waive any rights and remedies of Bank as to any or all
Collateral.
6.4.5 Except for any requirements provided by law that may not be
waived by Guarantor, Bank may sell or otherwise dispose of any Collateral in any
manner and order Bank determines in its absolute and sole discretion and
disposition may be for less than fair market value of the Collateral in the
absolute and sole discretion of Bank. With respect to any Collateral that is
personal property, Bank shall give Guarantor five (5) business days' prior
written notice of any sale of other disposition, except for personal property
Collateral that is perishable, threatens to decline speedily in value, is of a
type customarily sold on a recognized market, or is cash, cash equivalents,
certificates of deposit or the like and except as to Bank's right of set-off.
Guarantor's sole right with respect to all Collateral shall be to bid at a sale
thereof in accordance with applicable law.
6.4.6 Bank may fail to perfect, fail to protect the priority of, and
fail to insure any or all Liens and Encumbrances.
6.4.7 Bank may fail to inspect, insure, maintain, preserve, or
protect any or all Collateral.
6.4.8 Bank may obtain additional obligors for any or all Obligations.
6.4.9 Bank may increase or decrease any or all Borrower Obligations
or otherwise change the terms of any or all Borrower Obligations (including,
without limitation, increases or decreases in the interest rate, additional
advances within or in excess of any Commitment, increases or decreases in any
Commitment, changes in the maturity date of any or all Borrower Obligations, and
changes in the amount and timing of payments). Upon occurrence of an Event of
Default, Bank may declare all Obligations immediately
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due and payable or performable, whereupon the Obligations shall be immediately
due and payable or performable.
6.4.10 Bank may substitute for any or all Borrowers or Guarantor,
regardless of the same creditworthiness.
6.4.11 Bank may release any and all Borrowers or Guarantor.
6.4.12 Bank may compromise, delay enforcement, fail to enforce,
release, settle, or waive any or all Borrower Obligations, obligations of any
Borrower under the Environmental Agreements, obligations of Guarantor or any or
all rights and remedies of Bank against any and all Borrowers and Guarantor.
6.4.13 Bank may make advances, issue letters of credit, or grant
other financial accommodations for any Borrower without requiring satisfaction
of all conditions precedent in the Loan Documents.
6.4.14 Bank may fail to file or pursue a claim in any bankruptcy,
insolvency, probate, reorganization, or other proceeding as to any or all Liens
and Encumbrances or any or all Obligations.
6.4.15 Bank may subordinate (i) any or all Liens and Encumbrances, or
(ii) any or all Obligations.
6.4.16 Bank may amend, modify, extend, renew, restate, supplement, or
terminate in whole or in part any or all Loan Documents, Environmental
Agreements or Guaranty.
6.4.17 Bank may take or fail to take any other action with respect to
any or all Loan Documents, Environmental Agreements, Guaranty, any or all
Obligations, Borrowers and/or Guarantor, any or all Collateral, any or all Liens
and Encumbrances, or any or all rights and remedies of Bank.
6.4.18 Bank may assign any or all of its rights and delegate its
obligations under the Loan Documents, Environmental Agreements, and/or Guaranty,
in whole or in part (including, without limitation, participation).
6.4.19 Bank may do any other acts and make any other omissions that
result in extinguishment of any or all of the Obligations and any or all Liens
and Encumbrances.
6.4.20 Bank may do any other act or make any other omission that
might otherwise constitute a legal or equitable discharge of, or defense by,
Guarantor.
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6.5 GUARANTOR WAIVERS.
6.5.1 NOTE AND NOTICE WAIVERS. Guarantor waives, to the full extent
permitted by law, presentment, notice of dishonor, protest, notice of protest,
notice of intent to accelerate, notice of acceleration, notice of dishonor, and
all other notices or demands of any kind (including, without limitation, notice
of the acceptance by Bank of this Guaranty, notice of the existence, creation,
non-payment, or non-performance of any or all Obligations, and notice of the
acts or omissions described in SECTION 6.4), excepting only notices specifically
provided for in the Guarantor Loan Documents.
6.5.2 WAIVER OF ACTS AND OMISSIONS OF BANK. Guarantor waives any
defense to enforcement of the Guarantor Obligations or any Liens and
Encumbrances granted by Guarantor based on acts and omissions of Bank described
in SECTION 6.4.
6.5.3 WAIVER OF STATUTORY PROVISIONS. Guarantor waives to the full
extent permitted by law any and all rights and benefits under A.R.S. Sections
12-1641, 12-1642, 12-1643, 12-1644, 44-142, and 47-3606, 16 A.R.S. Rules of
Civil Procedure, Rule 17(f), and any other similar or replacement statutes or
rules now or hereafter in effect and any other statutes or rules now or
hereafter in effect that purport to confer specific rights upon, or make
specific defenses or procedures available to, guarantors.
6.5.4 WAIVER OF STATUTE OF LIMITATIONS. To the full extent permitted
by law, Guarantor waives any and all statutes of limitations as a defense to any
or all Obligations.
6.5.5 WAIVER OF LAW AND EQUITABLE PRINCIPLES CONFLICTING WITH THIS
GUARANTY. To the full extent permitted by law, Guarantor waives any and all
provisions of law and equitable principles that conflict with this Guaranty.
6.5.6 WAIVER OF ANY OBLIGATION OF BANK TO INFORM GUARANTOR.
Guarantor waives any right to require Bank, and Bank shall have no obligation,
to provide to Guarantor any information concerning performance of the Borrower
Obligations or Borrowers' obligations under the Environmental Agreements, the
ability of any Borrower to perform the Borrower Obligations or any Borrower's
obligations under the Environmental Agreements, or any other matter relating to
any Borrower, regardless of what information Bank may have from time to time.
6.5.7 WAIVER OF CONTRIBUTION, EXONERATION, INDEMNIFICATION,
REIMBURSEMENT, SUBROGATION, AND OTHER RIGHTS AGAINST BORROWER AND OTHER LOAN
PARTIES. Guarantor authorizes Bank, at its sole option, without notice or
demand and without affecting the obligations or the liability of Guarantor under
this Guaranty, to foreclose the Deed of Trust and the interests in the
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Project secured thereby by nonjudicial sale, or to exercise any other right or
remedy with respect to the Deed of Trust or the Project covered thereby, and to
exercise any right or remedy with respect to the Loan Agreement or the Personal
Property covered thereby. No such action by Bank shall release or limit the
obligations or the liability of Guarantor hereunder, even if the effect of that
action is to deprive Guarantor of any right of subrogation or of the right to
reimbursement from Borrower for any sums paid by Guarantor to Bank with respect
to the Obligations. Guarantor specifically agrees that Guarantor shall not be
released from liability hereunder by any action taken by Bank, including,
without limitation, a nonjudicial sale under any deed of trust, that would
afford any Borrower a defense based on any anti-deficiency laws, including
without limitation, Sections 580 and 726 of the California Code of Civil
Procedure and Nevada Revised Statutes Section 40.430. A deficiency is the
amount owing if the entire outstanding loan balance is not paid off following a
sale of the security for the Obligations. GUARANTOR EXPRESSLY WAIVES (I) ANY
DEFENSE TO THE RECOVERY OF A DEFICIENCY AGAINST GUARANTOR AFTER SUCH A
NONJUDICIAL SALE, (II) ANY DEFENSE OR BENEFITS THAT MAY BE DERIVED FROM
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 580A (LIMITATIONS ON DEFICIENCY
JUDGMENTS), SECTION 580D (THE PROTECTION AGAINST AN ANTI-DEFICIENCY) OR SECTION
726 (REQUIRING THE LENDER TO PROCEED AGAINST THE REAL PROPERTY SECURITY FIRST),
OR CALIFORNIA UNIFORM COMMERCIAL CODE SECTION 9504 (SECURED PARTY'S RIGHT TO
DISPOSE OF COLLATERAL AFTER DEFAULT), (III) ALL SURETYSHIP DEFENSES IT WOULD
OTHERWISE HAVE UNDER CALIFORNIA OR ANY OTHER LAW, AND (IV) ANY DEFENSE OR
BENEFITS THAT MAY BE DERIVED FROM NEVADA REVISED STATUTES SECTION 40.430.
GUARANTOR UNDERSTANDS AND AGREES THAT IF THERE IS A DEFICIENCY OWING AFTER BANK
COMPLETES A NONJUDICIAL FORECLOSURE OF THE REAL PROPERTY SECURITY DESCRIBED IN
THE DEED OF TRUST, BANK MAY, BECAUSE OF THE WAIVERS CONTAINED IN THIS PARAGRAPH,
BRING A LEGAL ACTION AGAINST GUARANTOR AND OBTAIN A JUDGMENT IN FAVOR OF BANK
AND AGAINST GUARANTOR TO RECOVER THAT DEFICIENCY. Guarantor waives any right to
receive notice of any judicial or nonjudicial sale or foreclosure of any real or
personal property securing the Borrower Obligations, and Guarantor's failure to
receive any such notice shall not impair nor affect Guarantor's Obligations
hereunder. Without limiting the generality of the foregoing, under current
California law (Section 580d of the California Code of Civil Procedure as
interpreted in UNION BANK V. GRADSKY, 265 Cal. App. 2d 40 (1968)), Guarantor may
be entitled to assert a defense to liability under this Guaranty if Bank
forecloses nonjudicially against real property security for the Loan. By
executing this Guaranty, Guarantor hereby: (1) waives and relinquishes that
defense; (2) agrees that it will not assert that defense in any action or
proceeding which Bank may commence to enforce this Guaranty; and (3)
acknowledges and agrees that Bank is relying on this waiver in making the Loan,
and that this waiver is a material party of the consideration which Bank is
receiving for making the Loan. Guarantor hereby waives any and all benefits
under
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California Civil Code Sections 2809, 2810, 2819, 2845, 2847, 2848, 2849 and
2850.
7. SUBORDINATION.
7.1 SUBORDINATED INDEBTEDNESS. If from time to time any Borrower 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 Obligations
and the right of Bank to realize upon any or all Collateral. Guarantor agrees
that such liabilities and obligations of any Borrower 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 such Borrower, except with
respect to the existing security for (A) that Amended and Restated Promissory
Note dated November 30, 1992 in the face amount of $22,500,000 executed by
Richmond Homes, Inc. I, and payable to Richmond American Homes of Colorado,
Inc., (n.k.a. M.D.C. Pipeline and Development Company) and (B) Secured
Promissory Note in the face amount of $121,105,234 dated December 28, 1989
executed by Richmond American Homes of Colorado, Inc. (II) (n.k.a. Richmond
Homes, Inc. I) to the order of M.D.C. Holdings, Inc., M.D.C. Land Corporation,
Richmond Homes Limited, Richmond American Homes of Colorado, Inc. (n.k.a. M.D.C.
Pipeline and Development Company), Richmond American Homes of Texas, Inc. and
Yosemite Financial, Inc.; and (C) Secured Promissory Note in the face amount of
$11,564,085 dated January 11, 1990 executed by Richmond American Homes of
Colorado, Inc. (II) (n.k.a. Richmond Homes, Inc. I) to the order of Richmond
Homes Limited. Guarantor and, by its acceptance of this Guaranty, 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 the
applicable Borrower and accepted by Guarantor as such payments become due; and
(ii) after the occurrence and during the continuation of an Event of Default,
such 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, Guarantor receives any payment from a
Borrower, such payment shall be held in trust by Guarantor for the benefit of
Bank, shall be segregated from the other funds of Guarantor, and shall forthwith
be paid by Guarantor to Bank and applied to payment of the Borrower Obligations
and payment of such Borrower's obligations under the Environmental Agreements,
whether or not then due.
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7.2 BANKRUPTCY, INSOLVENCY, ETC. 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 any Borrower,
or the proceeds thereof, to creditors of such Borrower, by reason of the
liquidation, dissolution, or other winding up of such Borrower's business, or in
the event of any receivership, insolvency or bankruptcy proceedings by or
against any Borrower, or assignment for the benefit of creditors, or of any
proceedings by or against any 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 any 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
shall be payable with respect to any Subordinated Indebtedness shall be paid
over to Bank for application to the payment of the Obligations, whether due or
not due, and no payments shall be made upon or in respect of Subordinated
Indebtedness unless and until the Obligations shall have been paid and satisfied
in full. In any such event, all claims of the Bank and all claims of the
Guarantor shall, at the option of the Bank, forthwith become due and payable
without demand or notice.
7.3 ATTORNEY-IN-FACT. 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 any Borrower, or the proceeds
thereof, to creditors of such Borrower, by reason of the liquidation,
dissolution, or other winding up of such Borrower's business, or in the event of
any receivership, insolvency or bankruptcy proceedings by or against any
Borrower, or assignment for the benefit of creditors, or of any proceedings by
or against any 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 any
Borrower for the purpose of receiving payment thereof, or on account thereof,
Guarantor irrevocably authorizes and empowers Bank, or any person Bank 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 such Borrower on account of the Subordinated Indebtedness as
Bank, or its appointee, may deem expedient and proper and, if necessary, to vote
such claims in any proceedings and to receive and collect 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 Guarantor hereby agrees, from time to time and upon request, to
make, execute and deliver to Bank such powers of
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attorney, assignments, endorsements, proofs of claim, pleadings, verifications,
affidavits, consents, agreements or other instruments as may be requested by
Bank in order to enable the Bank 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.
7.4 DISTRIBUTIONS, ETC. 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 Obligations, Guarantor will forthwith deliver the same to Bank in
precisely the form as received except for the endorsement or assignment of
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 Guarantor as
property of the Bank. In the event of the failure of Guarantor to make any such
endorsement or assignment, the Bank, or any of its officers or employees, on
behalf of the Bank, is hereby irrevocably authorized to make the same.
7.5 BOOKS OF ACCOUNT. Guarantor agrees to maintain in its books of
account notations satisfactory to Bank of the rights and priorities of Bank
hereunder, and from time to time, upon request, to furnish Bank with sworn
financial statements. Bank 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.
8. RIGHTS AND REMEDIES OF BANK. The rights and remedies of Bank shall be
cumulative and non-exclusive. Delay, discontinuance, or failure to exercise any
right or remedy of Bank shall not be a waiver thereof, of any other right or
remedy of Bank, or of the time of the essence provision. Exercise of any right
or remedy of Bank shall not cure or waive any Event of Default or invalidate any
act done in response to any Event of Default.
9. LIMIT OF LIABILITY OF BANK. In exercising rights and remedies, neither
Bank nor any stockholder, director, officer, employee, agent, or representative
of Bank shall have any liability for any injury to the assets, business,
operations, or property of Guarantor or any other liability to Guarantor, other
than for its own gross negligence or willful misconduct.
10. SURVIVAL. The representations, warranties, and covenants of Guarantor in
the Guarantor Documents shall survive the execution and delivery of this
Guaranty.
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11. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, WAIVER,
APPROVAL, CONSENT, ETC. The Guarantor Documents contain the complete
understanding and agreement of Guarantor and Bank and supersede all prior
representations, warranties, agreements, arrangements, understandings, and
negotiations. No provision of the Guarantor Documents may be changed,
discharged, supplemented, terminated, or waived except in a writing signed by
the parties thereto. Delay or failure by Bank to insist on performance of any
obligation when due or compliance with any other term or condition in the
Guarantor Documents shall not operate as a waiver thereof or of any other
obligation, term, or condition or of the time of the essence provision.
Acceptance of late payments or performance shall not be a waiver of the time of
the essence provision, the right of Bank to require that subsequent payments or
performance be made when due, or the right of Bank to declare an Event of
Default if subsequent payments or performance are not made when due. Any
approval, consent, or statement that a matter is satisfactory by Bank under the
Guarantor Documents must be in writing executed by Bank and shall apply only to
the Person(s) and facts specifically set forth in the writing.
12. BINDING EFFECT. The Guarantor Documents shall be binding upon Guarantor
and shall inure to the benefit of Bank and their successors and assigns and the
executors, legal administrators, personal representatives, heirs, devisees, and
beneficiaries of Guarantor, provided, however, that Guarantor may not delegate
any of its obligations under the Guarantor Documents and any purported
delegation shall be void. Bank may from time to time in its absolute and sole
discretion assign it rights and delegate its obligations under the Loan
Documents and/or the Guarantor Documents, in whole or in part, without notice to
or consent by Guarantor (including, without limitation, participation). In
addition to any greater or lesser limitation provided by law, Guarantor shall
not assert against any assignee of Bank any claims or defenses Guarantor may
have against Bank except claims and defenses, if any, arising under the Loan
Documents or Guarantor Documents or the Environmental Agreements.
13. COSTS, EXPENSES, AND FEES. Guarantor agrees to pay within ten (10) days of
demand, and with respect to clauses (ii) through (v), inclusive, immediately
upon demand, all external and internal costs, expenses, and fees (including,
without limitation, as applicable, inside and outside attorneys, paralegals, and
document clerks and specialists, appraisal, appraisal review, environmental
assessment, environmental testing, environmental cleanup, other inspection,
processing, title, filing, and recording costs, expenses, and fees) of Bank (i)
in the negotiation, execution, and delivery of the Guarantor Documents, (ii) in
enforcement of the Guarantor Documents and exercise of the rights and remedies
of Bank, (iii) in defense of the legality, validity, binding nature, and
enforceability of the Guarantor Documents and the perfection and priority of the
Liens and Encumbrances granted in the Loan
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Documents, (iv) in gaining possession of, holding, repairing, maintaining,
preserving and protecting any Collateral (as defined in the Loan Agreement), (v)
in selling or otherwise disposing of any Collateral, (vi) otherwise in relation
to the Guarantor Documents, or relating to the Collateral or the rights and
remedies of Bank under the Guarantor Documents or relating to the Collateral,
and (vii) in preparing for the foregoing, whether or not any legal proceeding is
brought or other action is taken. Such costs, expenses, and fees shall include,
without limitation, all such costs, expenses, and fees incurred in connection
with any bankruptcy, receivership, replevin, or other court proceedings (whether
at the trial or appellate level). Guarantor agrees to pay interest on such
costs, expenses, and fees at the Default Rate from the date incurred by Bank
until paid in full with respect to clauses (ii) through (iv), inclusive, and
with respect to all other clauses, from the date due.
14. SEVERABILITY. If any provision or any part of any provision of the
Guarantor Documents is unenforceable, the enforceability of the other provisions
or the other provisions and the remainder of the subject provision,
respectively, shall not be affected and they shall remain in full force and
effect.
15. CHOICE OF LAW. Except as otherwise expressly provided in this Guaranty,
the parties agree and intend that the Guarantor Documents, and the respective
rights and obligations of the parties thereto, shall be governed by and
construed according to the internal laws of the State of Arizona (without regard
to its conflict of laws principles). The parties agree and stipulate that the
Guarantor Documents were negotiated primarily in Arizona, that the Guarantor
Documents were executed, delivered and accepted by Bank in Arizona, all payments
shall be made to Bank in Arizona, and that Arizona has a substantial
relationship to the parties and to the underlying transaction contemplated by
the Guarantor Documents. Notwithstanding the foregoing, the parties agree that:
(i) With respect to any collateral given by any Borrower or Guarantor
to Bank, the perfection and priority of Bank's security interests in personal
property collateral or liens on real property collateral shall be governed by
the law of the respective states where the respective collateral is located.
(ii) The procedures governing the enforcement by Bank of provisional
remedies against any Borrower or Guarantor, including by way of illustration,
but not limited to, actions for claim and delivery of property, for injunctive
relief or for the appointment of a receiver, shall be governed by the law of the
state in which such provisional remedies or relief are sought.
(iii) With respect to any collateral given by any Borrower or
Guarantor to Bank, the procedures for foreclosing on the security interests or
liens of Bank shall be governed by the
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laws of the state in which the collateral is located and in which the
foreclosure is carried out; provided, however, that this subparagraph shall in
no event be construed to provide that the substantive law of such state shall
apply to this Agreement, the parties intending that the substantive law of the
State of Arizona shall govern this Agreement and all nonprocedural incidents of
foreclosure, including but not limited to the right of Bank to obtain a judgment
for any deficiency following foreclosure.
Notwithstanding that various provisions of this Guaranty, the Loan
Documents and the Environmental Agreements have been drafted to address or waive
the laws of other states, in the event of any foreclosure by Bank on any
collateral, regardless of where the collateral is located, the parties agree and
intend that the laws of the State of Arizona shall govern the right of Bank to
collect and obtain a judgment for any deficiency following foreclosure, and the
parties specifically intend that the laws of other states, including but not
limited to Sections 580a, 580b, 580c, 580d and 726 of the California Code of
Civil Procedure, and Nevada Revised Statutes Section 40.430, shall not be
applicable. In such connection, the parties, further agree that:
(a) Bank may enforce its rights under the Loan Documents and
this Guaranty and the Environmental Agreements, including but not limited to its
right to sue Guarantor, to collect any outstanding indebtedness, or to obtain a
judgment against any Borrower or Guarantor in California, Arizona, Nevada or
other states (including without limitation a judgment for any deficiency
following foreclosure), in accordance with Arizona law, and if Bank obtains a
judgment (including without limitation a deficiency judgment) in a state other
than in California or Nevada, then Bank shall have the right to enforce such
judgment in California or Nevada, as well as in other states;
(b) California's and Nevada's antideficiency, one-action, and
security-first rules (including, without limitation, California Code of Civil
Procedure Sections 580a, 580b, 580c and 580d, and Nevada Revised Statutes
Section 40.430) are inapplicable to the obligations and indebtedness secured by
the Deeds of Trust and the other Loan Documents and to the enforcement or
realization by Bank of its rights and remedies relating thereto; and
(c) Section 726 of the California Code of Civil Procedure shall
not apply (i) to prevent or limit exercise or enforcement of any other rights or
remedies of Bank (including, but not limited to, Bank's right to obtain a
deficiency judgment) either prior to or following foreclosure or (ii) to prevent
or limit Bank's right to foreclosure judicially or nonjudicially following any
exercise or enforcement of any other rights or remedies of Bank.
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16. TIME OF THE ESSENCE. Time is of the essence with regard to each provision
of the Guarantor Documents as to which time is a factor.
17. NOTICES AND DEMANDS. All demands or notices under the Guarantor Documents
shall be in writing (including, without limitation, telecopy) and mailed,
telecopied, or delivered to the respective party hereto at the address specified
at the beginning of this Guaranty or such other address as shall have been
specified in a written notice. Any demand or notice mailed shall be mailed
first-class mail, postage-prepaid, return-receipt-requested and shall be
effective upon the earlier of (i) actual receipt by the addressee, and (ii) the
date shown on the return-receipt. Any demand or notice not mailed will be
effective upon the earlier of (i) actual receipt by the addressee, and (ii) the
time the receipt of the telecopy, telegram, telex, or cable is mechanically
confirmed. Bank shall give to Guarantor copies of any notices given by Bank to
any Borrower under the Loan Documents and Environmental Agreements.
18. JOINT AND SEVERAL OBLIGATIONS. All obligations in any of the Guarantor
Documents executed by more than one Person shall be the joint and several
obligations of each such Person.
19. BANK'S RIGHT OF SET-OFF. Guarantor grants to Bank (i) the right at any
time and from time to time after any Event of Default, in the absolute and sole
discretion of Bank and without demand or notice to Guarantor, to set-off and
apply deposits (whether certificates of deposit, demand, general, savings,
special, time, or other, and whether provisional or final) held and any other
liabilities or other obligations of Bank to Guarantor, other than any trust or
custodial accounts administered by Guarantor for the benefit of others
("DEPOSITS, LIABILITIES, AND OBLIGATIONS") against or to the Guarantor
Obligations, regardless of whether the Deposits, Liabilities, or Obligations are
contingent, matured, or unmatured, and (ii) a security interest in the Deposits,
Liabilities, and Obligations to secure the Guarantor Obligations. In addition,
Guarantor grants to Bank the right upon occurrence of an event that with notice,
passage of time, or both would be an Event of Default to segregate all Deposits,
Liabilities, and Obligations into an account or otherwise undo the sole control
of Bank. Bank shall notify Guarantor within a reasonable period of time after
Bank's exercise of any of the rights set forth in this paragraph.
20. INDEMNIFICATION OF BANK. Guarantor agrees to indemnify, hold harmless, and
on demand defend Bank and its shareholders, directors, officers, employees,
agents, and representatives for, from, and against any and all damages, losses,
liabilities, penalties, costs, and expenses (including, without limitation,
costs and expenses of litigation and attorneys' fees) arising from any claim or
demand in respect of the Environmental Agreements (as
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defined in the Loan Agreement) and arising at any time, whether before or after
termination of any Commitment, any letters of credit issued by Bank for any
Borrower expire or are drawn in full, any drafts drawn or drawn and accepted
under any such letters of credit are paid in full, and payment of the
Obligations in full. The obligations of Guarantor and the rights of Bank under
this SECTION 20 shall survive termination of any Commitment, the expiration or
drawing in full of any letters of credit issued by Bank to any Borrower, the
payment in full of any drafts drawn or drawn and accepted under any such letters
of credit, and payment of the Obligations in full.
21. RESCISSION OR RETURN OF PAYMENTS. If at any time or from time to time,
whether before or after termination of any Commitment, any letters of credit
issued by Bank for any Borrower expire or are drawn in full, any drafts drawn or
drawn and accepted under any such letters of credit are paid in full, and
payment and performance of the Obligations in full, all or any part of any
amount received by Bank in payment of, or on account of, any Obligation is or
must be, or is claimed to be, avoided, rescinded, or returned by Bank to
Guarantor or any other Person for any reason whatsoever (including, without
limitation, bankruptcy, insolvency, or reorganization of Guarantor or any other
Person), such Obligation shall be deemed to have continued in existence or shall
be reinstated, as the case may be, all as though such payment had not been
received, and Guarantor shall execute and deliver to Bank such documents as are
reasonably required to reinstate any liens, security interests, and other
encumbrances that secured such Obligations at the time such avoided, rescinded,
or returned payment was received by Bank.
22. NO CONSTRUCTION AGAINST BANK OR GUARANTOR. The Guarantor Documents are the
result of negotiations between Guarantor and Bank. Accordingly, the Guarantor
Documents shall not be construed for or against Guarantor or Bank, regardless of
which party drafted the Guarantor Documents or any part thereof.
23. HEADINGS. The headings at the beginning of each section of the Guarantor
Documents are solely for convenience and are not part of the Guarantor
Documents.
24. NUMBER AND GENDER. In the Guarantor Documents the singular shall include
the plural and vice versa and each gender shall include the other genders.
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DATED as of the date first above stated.
M.D.C. HOLDINGS, INC., a Delaware
corporation
By: /s/ John J. Heaney
-------------------------------------
Name: John J. Heaney
-----------------------------------
Title: Vice President
----------------------------------
STATE OF ARIZONA )
) ss.
County of Maricopa )
The above instrument was acknowledged before me this 13th day of June, 1994, by
/s/ John Heaney
---------------------------------------------, the
Vice President
------------------------------------- of M.D.C. HOLDINGS, INC., a Delaware
corporation, on behalf of the corporation.
/s/ Ellen Schenkler
-------------------------------------
Notary Public
My commission expires:
June 19, 1997 [Seal]
------------------
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