EXHIBIT 4.6(b)
CONSENT AND AGREEMENT OF GUARANTOR
With respect to the Modification Agreement, dated June 13, 1995
("AGREEMENT"), between RICHMOND AMERICAN HOMES, INC., a Delaware
corporation, RICHMOND AMERICAN HOMES OF CALIFORNIA, INC., a
Colorado corporation, RICHMOND HOMES, INC. I, a Delaware
corporation, RICHMOND HOMES, INC. II, a Delaware corporation, and
RICHMOND AMERICAN HOMES OF NEVADA, INC., a Colorado corporation
(collectively, "BORROWERS") and Bank One, Arizona, NA, a national
banking association ("BANK"), the undersigned (individually and,
if more than one, collectively "GUARANTOR") agrees for the
benefit of Bank as follows:
1. Guarantor acknowledges (i) receiving a copy of and
reading the Agreement, (ii) the accuracy of the Recitals in the
Agreement, and (iii) the effectiveness of (A) the Guaranty of
Payment, dated June 13, 1994 ("GUARANTY"), by the undersigned for
the benefit of Bank, as modified herein, and (B) any other
agreements, documents, or instruments securing or otherwise
relating to the Guaranty, (including, without limitation, any
arbitration resolution and any environmental certification and
indemnity agreement previously executed and delivered by the
undersigned), as modified herein. The Guaranty and such other
agreements, documents, and instruments, as modified herein, are
referred to individually and collectively as the "GUARANTOR
DOCUMENTS".
2. Guarantor consents to the modification of the Loan
Documents and all other matters in the Agreement.
3. Guarantor fully, finally, and forever releases and
discharges Bank and its successors, assigns, directors, officers,
employees, agents, and representatives from any and all actions,
causes of action, claims, debts, demands, liabilities,
obligations, and suits of whatever kind or nature, in law or
equity, that Guarantor has or in the future may have, whether
known or unknown, (i) in respect of the Loan, the Loan Documents,
the Guarantor Documents, or the actions or omissions of Bank in
respect of the Loan, the Loan Documents, or the Guarantor
Documents and (ii) arising from events occurring prior to the
date hereof.
4. Guarantor agrees that all references, if any, to the
Note, the Loan Agreement, the Deed of Trust, the Security
Documents, and the Loan Documents in the Guarantor Documents
shall be deemed to refer to such agreements, documents, and
instruments as modified by the Agreement.
5. Guarantor reaffirms the Guarantor Documents and agrees
that the Guarantor Documents continue in full force and effect
and remain unchanged, except as specifically modified by this
Consent and Agreement of
Guarantor(s). Any property or rights to
or interests in property granted as security in the Guarantor
Documents shall remain as security for the Guaranty and the
obligations of Guarantor in the Guaranty.
6. Guarantor agrees that the Loan Documents, as modified
by the Agreement, and the Guarantor Documents, as modified by
this Consent and Agreement of Guarantor, are the legal, valid,
and binding obligations of Borrower and the undersigned,
respectively, enforceable in accordance with their terms against
Borrower and the undersigned, respectively.
7. Guarantor agrees that Guarantor has no claims,
counterclaims, defenses, or offsets with respect to the
enforcement against Guarantor of the Guarantor Documents.
8. Guarantor represents and warrants that there has been
no material adverse change in the financial condition of any
Guarantor from the most recent financial statement received by
Bank.
9. Guarantor agrees that this Consent and Agreement of
Guarantor may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same document. Signature and
acknowledgement pages may be detached from the counterparts and
attached to a single copy of this Consent and Agreement of
Guarantor to physically form one document.
DATED as of the date of the Agreement.
M.D.C. HOLDINGS, INC., a Delaware
corporation
By:______________________________
Name:____________________________
Title:___________________________
State of __________ )
) ss.
County of _________ )
The above instrument was acknowledged before me this _____ day of June,
1995, by ____________________________, the ____________________________ of
M.D.C. HOLDINGS, INC., a Delaware corporation, on behalf of the
corporation.
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My commission expires:
______________________ _______________________________
Notary Public
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CONSENT AND AGREEMENT OF GUARANTOR
With respect to the Second Modification Agreement, dated effective as of
July 15, 1995 ("AGREEMENT"), between RICHMOND AMERICAN HOMES, INC., a
Delaware corporation, RICHMOND AMERICAN HOMES OF CALIFORNIA, INC., a
Colorado corporation, RICHMOND HOMES, INC. I, a Delaware corporation,
RICHMOND HOMES, INC. II, a Delaware corporation, and RICHMOND AMERICAN
HOMES OF NEVADA, INC., a Colorado corporation (collectively, "BORROWERS")
and Bank One, Arizona, NA, a national banking association ("BANK"), the
undersigned (individually and, if more than one, collectively "GUARANTOR")
agrees for the benefit of Bank as follows:
1. Guarantor acknowledges (i) receiving a copy of and reading the
Agreement, (ii) the accuracy of the Recitals in the Agreement, and (iii)
the effectiveness of (A) the Guaranty of Payment, dated June 13, 1994
("GUARANTY"), by the undersigned for the benefit of Bank, as modified
herein, and (B) any other agreements, documents, or instruments securing or
otherwise relating to the Guaranty, (including, without limitation, any
arbitration resolution and any environmental certification and indemnity
agreement previously executed and delivered by the undersigned), as
modified herein. The Guaranty and such other agreements, documents, and
instruments, as modified herein, are referred to individually and
collectively as the "GUARANTOR DOCUMENTS".
2. Guarantor consents to the modification of the Loan Documents and
all other matters in the Agreement. Additionally, the Guaranty is hereby
modified by adding the following SECTION 5.11 thereto:
5.11 FIXED CHARGE COVERAGE RATIO OR DEBT-TO-WORTH RATIO.
Guarantor shall maintain either (i) a Consolidated Fixed Charge
Coverage Ratio (as defined in the Indenture, as hereinafter
defined) of at least 1.5 to 1.00, or (ii) a ratio of Indebtedness
(as defined in the Indenture), excluding Indebtedness permitted
by SECTION 4.11(A) of the Indenture, other than with respect to
clause (g) thereof, to Consolidated Net Worth (as defined in the
Indenture) of not more than (A) 3.0 to 1.00 during
fiscal year 1994, (B) 3.125 to 1.00 during fiscal year 1995, and (C)
3.25 to 1.00 during fiscal year 1996, and each fiscal year thereafter.
As used herein, the "INDENTURE" means that Indenture for M.D.C.
Holdings, Inc. $190,000,000.00 11.125% Senior Notes dated
December 15, 1993, as thereafter amended.
Additionally, Guarantor acknowledges that pursuant to and in accordance
with the provisions of SECTION 5.5 of the Guaranty, the minimum Tangible
Net Worth of Guarantor required therein was increased, commencing on
January 1, 1995, to $150,000,000.00.
3. Guarantor fully, finally, and forever releases and discharges
Bank and its successors, assigns, directors, officers, employees, agents,
and representatives from any and all actions, causes of action, claims,
debts, demands, liabilities, obligations, and suits of whatever kind or
nature, in law or equity, that Guarantor has or in the future may have,
whether known or unknown, (i) in respect of the Loan, the Loan Documents,
the Guarantor Documents, or the actions or omissions of Bank in respect of
the Loan, the Loan Documents, or the Guarantor Documents and (ii) arising
from events occurring prior to the date hereof.
4. Guarantor agrees that all references, if any, to the Note, the
Loan Agreement, the Deed of Trust, the Security Documents, and the Loan
Documents in the Guarantor Documents shall be deemed to refer to such
agreements, documents, and instruments as modified by the Agreement.
5. Guarantor reaffirms the Guarantor Documents and agrees that the
Guarantor Documents continue in full force and effect and remain unchanged,
except as specifically modified by this Consent and Agreement of
Guarantor(s). Any property or rights to or interests in property granted
as security in the Guarantor Documents shall remain as security for the
Guaranty and the obligations of Guarantor in the Guaranty.
6. Guarantor agrees that the Loan Documents, as modified by the
Agreement, and the Guarantor Documents, as modified by this Consent and
Agreement of Guarantor, are the legal, valid, and binding obligations of
Borrower and the undersigned, respectively, enforceable in accordance with
their terms against Borrower and the undersigned, respectively.
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7. Guarantor agrees that Guarantor, as of the date hereof, has no
claims, counterclaims, defenses, or offsets with respect to the enforcement
against Guarantor of the Guarantor Documents.
8. Guarantor represents and warrants that there has been no material
adverse change in the financial condition of any Guarantor from the most
recent financial statement received by Bank.
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9. Guarantor agrees that this Consent and Agreement of Guarantor may
be executed in one or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
document. Signature and acknowledgement pages may be detached from the
counterparts and attached to a single copy of this Consent and Agreement of
Guarantor to physically form one document.
DATED as of the date of the Agreement.
M.D.C. HOLDINGS, INC., a
Delaware corporation
By:_____________________________
Name:___________________________
Title:__________________________
State of Arizona )
) ss.
County of Maricopa )
The above instrument was acknowledged before me this 28th day of
July, 1995, by John J. Heaney, the ____________________________
of M.D.C. HOLDINGS, INC., a Delaware corporation, on behalf of
the corporation.
My commission expires:
______________________ _______________________________
Notary Public
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