EXHIBIT 4.7
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of December 7, 2001, (this
"First Supplemental Indenture"), by and among M.D.C. Holdings, Inc., a Delaware
corporation (the "Company"), U.S. Bank National Association (the "Trustee"), and
each of the following wholly owned subsidiaries of the Company (individually a
"Guarantor," and together with any other Subsidiary of the Company that executes
and delivers a supplemental indenture pursuant to Section 1.04 hereof, the
"Guarantors"): Richmond American Homes of California, Inc., a Colorado
corporation, Richmond American Homes of Maryland, Inc., a Maryland corporation,
Richmond American Homes of Nevada, Inc., a Colorado corporation, Richmond
American Homes of Virginia, Inc., a Virginia corporation, Richmond American
Homes of Arizona, Inc., a Delaware corporation, and Richmond American Homes of
Colorado, Inc., a Delaware corporation.
WITNESSETH:
WHEREAS, the Company and the Trustee executed an Indenture dated as of
January 28, 1998 (the "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 Guarantors wish to guarantee the obligations of the
Company under the Notes and otherwise modify the Indenture on the terms set
forth in this First Supplemental Indenture; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture pursuant to Section 9.01 of the Indenture, and
all requirements necessary to make this First Supplemental Indenture a valid
instrument in accordance with its terms have been performed and the execution
and delivery of this First Supplemental Indenture have been duly authorized in
all respects by the Company and each of the Guarantors;
NOW, THEREFORE, the Company and the Guarantors covenant and agree with
the Trustee as follows:
ARTICLE I
GUARANTY OF NOTES AND RELATED PROVISIONS
SECTION 1.01. Unconditional Guaranty. Each 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 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 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, 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.
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 WHEREOF, 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 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.
SECTION 1.03. Amendment of the Definition of "Incur".
The definition of "Incur" is amended to read in its entirety as
follows:
"Incur" means, with respect to any Indebtedness or
other obligation of any Person, to create, issue, incur
(including by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required
pursuant to GAAP or otherwise, of any such Indebtedness or
other obligation on the balance sheet of such Person (and
"Incurrence," "Incurred" and "Incurring" shall have meanings
correlative to the foregoing), provided that this definition
shall not include the issuance of a guaranty by a Guarantor of
any Indebtedness of the Company. Indebtedness of a Person
existing at the time such Person becomes a Restricted
Subsidiary or is merged or consolidated with or into the
Company or any Restricted Subsidiary shall be deemed to be
Incurred at such time. Neither the accrual of interest, nor
the accretion of original issue discount, shall be deemed to
be an Incurrence of Indebtedness. In addition, the mere
extension of the term of lender commitments to extend credit
or funds to the Company or any of its Subsidiaries pursuant to
a revolving credit agreement or similar arrangement shall not
be deemed to be an Incurrence of Indebtedness.
SECTION 1.04. Additional Guaranties and Release of Guaranties. The
Company shall not permit any of its Restricted Subsidiaries, directly or
indirectly, to guarantee any Indebtedness of the Company ("Guaranteed
Indebtedness") unless either (i) the Guaranteed Indebtedness of such Restricted
Subsidiary is in full force and effect as of the date of this First Supplemental
Indenture or (ii) such Restricted Subsidiary simultaneously executes and
delivers to the Trustee a supplemental indenture, in a form
reasonably satisfactory to the Trustee, pursuant to which such Restricted
Subsidiary guarantees, jointly and severally with all other Guarantors, on the
same basis as such Guaranteed Indebtedness is guaranteed, the Guaranteed
Obligations. If the Guaranteed Indebtedness (1) ranks pari passu in right of
payment with the Notes, then the guaranty of such Guaranteed Indebtedness shall
rank pari passu with, or be subordinated in right of payment to, the Guaranty of
such Restricted Subsidiary or (2) is subordinated by its terms in right of
payment to the Notes, then the guaranty of such Guaranteed Indebtedness shall be
subordinated to the Guaranty of such Restricted Subsidiary at least to the
extent that the Guaranteed Indebtedness is subordinated to the Notes.
The Guaranty of any Guarantor will be automatically and unconditionally
released and discharged upon any of the following:
(i) any sale, exchange or transfer by the Company or such
Guarantor to any Person that is not an Affiliate of the Company of all
of the equity securities of, or all or substantially all of the assets
of, such Guarantor, which sale, exchange or transfer is made in
accordance with the provisions of this Indenture; or
(ii) the designation of such Guarantor as an Unrestricted
Subsidiary in accordance with the provisions of this Indenture;
provided, in each such case, the Company has delivered to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating that all conditions
precedent provided for in this Indenture relating to such transactions have been
complied with and that such release is authorized and permitted under this
Indenture.
SECTION 1.05. When a Guarantor May Merge or Transfer Assets. Article
Five of the Indenture is amended by adding the following Section 5.02 thereto:
Section 5.02. When a Guarantor May Merge, etc.
A Guarantor shall not consolidate with or merge with or into,
any other corporation, or transfer all or substantially all of its
assets to, any entity (other than the Company or another Guarantor)
unless permitted by law and unless such transaction (i) complies with
the terms of Section 4.12 and (ii) is not, by itself or in connection
with any related transaction, deemed to be the transfer of all or
substantially all of the properties and assets of the Company under
Section 5.01(b).
SECTION 1.06. Events of Default. Article Six of the Indenture is
amended to add the following Section 6.01(h) thereto:
(h) the Guaranty of any Guarantor shall fail to remain in full
force and effect or any action shall be taken by any Guarantor to
discontinue or to assert the invalidity or unenforceability of its
Guaranty, or any Guarantor shall fail to comply with any of the terms
or provisions of its
Guaranty, or any Guarantor denies that it has any further liability
under its Guaranty or gives notice to such effect.
ARTICLE II
MISCELLANEOUS
SECTION 2.01. Confirmation of Indenture. The Indenture, as supplemented
and amended by this First Supplemental Indenture, is in all respects ratified
and confirmed, and the Indenture, this First 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
Trustee set forth in Article Seven of the Indenture shall not be modified by
reason of this First Supplemental Indenture.
SECTION 2.03. Governing Law. This First 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 First 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 First
Supplemental Indenture, but this First Supplemental Indenture shall be construed
as if such invalid, illegal or unenforceable provision had never been contained
herein.
SECTION 2.05. Counterparts. This First 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 First
Supplemental Indenture to be duly executed as of the day and year first above
written.
M.D.C. HOLDINGS, INC.
By:
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Name:
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Title:
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
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Name:
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Title:
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RICHMOND AMERICAN HOMES OF CALIFORNIA, INC.
By:
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Name:
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Title:
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RICHMOND AMERICAN HOMES OF MARYLAND, INC.
By:
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Name:
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Title:
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RICHMOND AMERICAN HOMES OF NEVADA, INC.
By:
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Name:
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Title:
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RICHMOND AMERICAN HOMES OF VIRGINIA, INC.
By:
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Name:
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Title:
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RICHMOND AMERICAN HOMES OF ARIZONA, INC.
By:
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Name:
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Title:
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RICHMOND AMERICAN HOMES OF COLORADO, INC.
By:
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Name:
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Title:
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