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
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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