EXHIBIT 4.3
M.D.C. HOLDINGS, INC. AND THE GUARANTORS PARTY HERETO
7.0% SENIOR NOTES DUE 2012
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SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 3, 2002
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U.S. BANK NATIONAL ASSOCIATION,
TRUSTEE
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TABLE OF CONTENTS
Page
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ARTICLE ONE Scope of Supplemental Indenture; General..........................2
ARTICLE TWO Certain Definitions...............................................2
ARTICLE THREE Redemption.....................................................10
Section 3.01. Right of Redemption......................................10
ARTICLE FOUR Covenants.......................................................11
Section 4.01. Restrictions on Secured Debt.............................11
Section 4.02. Limitations on Sale and Leaseback Transactions...........13
Section 4.03. Additional Guarantees....................................13
Section 4.04. SEC Reports..............................................13
ARTICLE FIVE Successor Corporation...........................................14
Section 5.01. Consolidation, Merger and Sale of Assets.................14
ARTICLE SIX Guarantees.......................................................15
Section 6.01. Unconditional Guarantee..................................15
Section 6.02. Fraudulent Conveyance Limitation.........................16
Section 6.03. Waiver...................................................17
Section 6.04. Subordinated Indebtedness................................17
Section 6.05. Execution of Guarantee...................................19
Section 6.06. Additional Guarantees and Release of Guarantees..........19
ARTICLE SEVEN Miscellaneous..................................................21
Section 7.01. Confirmation of Indenture................................21
Section 7.02. Concerning the Trustee...................................21
Section 7.03. Governing Law............................................21
Section 7.04. Separability.............................................21
Section 7.05. Counterparts.............................................21
Section 7.06. No Adverse Interpretation of Other Agreements............21
Section 7.07. No Recourse Against Others...............................22
Section 7.08. Successors and Assigns...................................22
Section 7.09. Duplicate Originals......................................22
Section 7.10. Severability.............................................22
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SUPPLEMENTAL INDENTURE dated as of December 3, 2002
("
Supplemental Indenture"), to the Senior Debt Securities Indenture dated as of
December 3, 2002 (as amended, modified or supplemented from time to time in
accordance therewith, the "Indenture"), by and among M.D.C. HOLDINGS, INC., a
Delaware corporation (the "Company"), the Guarantors (as defined herein) and
U.S. Bank National Association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the holders of Notes (as defined
herein):
WHEREAS, the Company and the Trustee have executed an
Indenture to provide for the issuance from time to time of senior debt
securities (the "Securities") to be issued in one or more series as in the
Indenture provided;
WHEREAS, the Company and the Guarantors desire and have
requested the Trustee to join them in the execution and delivery of this
Supplemental Indenture in order to establish and provide for the issuance by the
Company of a series of Securities designated as its 7.0% Senior Notes due 2012,
substantially in the form attached hereto as Exhibit A, guaranteed by the
Guarantors, on the terms set forth herein;
WHEREAS, Section 2.01 of the Indenture provides that a
supplemental indenture may be entered into for such purpose provided certain
conditions are met;
WHEREAS, the conditions set forth in the Indenture for the
execution and delivery of this
Supplemental Indenture have been complied with;
and
WHEREAS, all things necessary to make this
Supplemental
Indenture a valid agreement of the Company, the Guarantors and the Trustee, in
accordance with its terms, and a valid amendment of, and supplement to, the
Indenture have been done;
NOW, THEREFORE:
In consideration of the premises and the purchase and
acceptance of the Notes by the holders thereof the Company and the Guarantors
mutually covenant and agree with the Trustee, for the equal and ratable benefit
of the Holders, that the Indenture is supplemented and amended, to the extent
expressed herein, as follows:
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ARTICLE ONE
SCOPE OF
SUPPLEMENTAL INDENTURE; GENERAL
The changes, modifications and supplements to the Indenture
effected by this
Supplemental Indenture shall be applicable only with respect
to, and govern the terms of, the Notes, which shall not be limited in aggregate
principal amount, and shall not apply to any other Securities that may be issued
under the Indenture unless a supplemental indenture with respect to such other
Securities specifically incorporates such changes, modifications and
supplements. Pursuant to this Supplemental Indenture, there is hereby created
and designated a series of Securities under the Indenture entitled "7.0% Senior
Notes due 2012." The Notes shall be in the form of Exhibit A hereto. The Notes
shall be guaranteed by the Guarantors as provided in such form and the
Indenture. If required, the Notes may bear an appropriate legend regarding
original issue discount for federal income tax purposes and any other legend
required by applicable law or the rules of any exchange on which the Notes may
be listed.
ARTICLE TWO
CERTAIN DEFINITIONS
The following terms have the meanings set forth below in this
Supplemental Indenture. Capitalized terms used but not defined herein have the
meanings ascribed to such terms in the Indenture. To the extent terms defined
herein differ from the Indenture the terms defined herein will govern.
"Attributable Debt" means, in respect of a Sale and Leaseback
Transaction, the present value (discounted at the weighted average effective
interest cost per annum of the outstanding debt securities of all series,
compounded semiannually) of the obligation of the lessee for rental payments
during the remaining term of the lease included in such transaction, including
any period for which such lease has been extended or may, at the option of the
lessor, be extended or, if earlier, until the earliest date on which the lessee
may terminate such lease upon payment of a penalty (in which case the obligation
of the lessee for rental payments shall include such penalty), after excluding
all amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water and utility rates and similar charges.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of or in a Person's
capital stock or other equity interests,
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and options, rights or warrants to purchase such capital stock or other equity
interests, whether now outstanding or issued after the Issue Date, including,
without limitation, all Preferred Stock of such Person if such Person is a
corporation or membership interests if such Person is a limited liability
company and each general and limited partnership interest of such Person if such
Person is a partnership.
"Capitalized Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of such obligations will be the capitalized amount thereof
determined in accordance with GAAP.
"cash" means U.S. Legal Tender.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Reference Treasury Dealer as having a maturity
comparable to the remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (a) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day preceding such Redemption Date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of
New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (b) if such release (or any successor release) is not
published or does not contain such price on such business day, (i) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(ii) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Consolidated Net Tangible Assets" means the total amount of
assets which would be included on a combined balance sheet of the Company and
the Guarantors under GAAP (less applicable reserves and other properly
deductible items) after deducting therefrom:
(1) all short-term liabilities, except for (x) liabilities
payable by their terms more than one year from the date of
determination (or renewable or extendible at the option of the obligor
for a period ending more than one year after such date) and (y)
liabilities in respect of retiree benefits other than pensions for
which the Restricted Subsidiaries are required to accrue pursuant to
Statement of Financial Accounting Standards No. 106;
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(2) investments in subsidiaries that are not Restricted
Subsidiaries; and
(3) all goodwill, trade names, trademarks, patents,
unamortized debt discount, unamortized expense incurred in the issuance
of debt and other intangible assets.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of the Person determined in accordance with GAAP.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian, sequestrator or similar official under any Bankruptcy Law.
"Event of Default" means any one of the following events:
(a) default in the payment of interest on the Notes as and
when the same becomes due and payable and the continuance of any such
failure for 30 days;
(b) default in the payment of all or any part of the principal
or premium, if any, on the Notes when and as the same become due and
payable at maturity, at redemption, by declaration of acceleration or
otherwise;
(c) default in the observance or performance of, or breach of,
any covenant, agreement or warranty of the Company contained in the
Notes , the Indenture or this Supplemental Indenture (unless
specifically dealt with elsewhere), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by Holders of at least 25% in aggregate
principal amount of the outstanding Notes, a written notice specifying
such default or breach, requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder;
(d) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudging the Company or any of
its Significant Subsidiaries as bankrupt or insolvent, or approving as
properly filed a petition in an involuntary case or proceeding seeking
reorganization of the Company or any of its Significant Subsidiaries
under any bankruptcy or similar law, or a decree, judgment or order of
a court of competent jurisdiction directing the appointment of a
receiver, liquidator, trustee, or assignee in bankruptcy or insolvency
of the Company, any of its Significant Subsidiaries, or of the assets
or property of any such Person, or the winding up or liquidation of the
affairs of any such Person, shall have been entered, and the
continuance of any such decree, judgment or order unstayed and in
effect for a period of 90 consecutive days;
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(e) the Company or any of its Significant Subsidiaries shall
institute proceedings to be adjudicated a voluntary bankrupt (including
conversion of an involuntary proceeding into a voluntary proceeding),
or shall consent to the filing of a bankruptcy proceeding against it,
or shall file a petition or answer or consent to the filing of any such
petition, or shall consent to the appointment of a Custodian, receiver,
liquidator, trustee, or assignee in bankruptcy or insolvency of it or
any of its assets or property, or shall make a general assignment for
the benefit of creditors, or shall admit in writing its inability to
pay its debts generally as they become due, or shall, within the
meaning of any Bankruptcy Law, become insolvent, or fail generally to
pay its debts as they become due;
(f) (i) the acceleration of any Indebtedness (other than
Non-Recourse Indebtedness) of the Company or any of its Significant
Subsidiaries (in accordance with the terms of such Indebtedness and
after giving effect to any applicable grace period set forth in the
documents governing such Indebtedness) that has an outstanding
principal amount of $25,000,000 or more individually or $40,000,000 or
more in the aggregate to be immediately due and payable; provided that,
in the event any such acceleration is withdrawn or otherwise rescinded
(including satisfaction of such Indebtedness) within a period of ten
business days after such acceleration by the holders of such
Indebtedness, any Event of Default under this clause (f) will be deemed
to be cured and any acceleration hereunder will be deemed withdrawn or
rescinded; or (ii) the failure by the Company or any of its Significant
Subsidiaries to make any principal, premium, interest or other required
payment in respect of Indebtedness (other than Non-Recourse
Indebtedness) of the Company or any of its Significant Subsidiaries
with an outstanding aggregate principal amount of $25,000,000 or more
individually or $40,000,000 or more in the aggregate (after giving
effect to any applicable grace period set forth in the documents
governing such Indebtedness);
(g) one or more final nonappealable judgments (in the amount
not covered by insurance or not reserved for) or the issuance of any
warrant of attachment against any portion of the property or assets
(except with respect to Non-Recourse Indebtedness) of the Company or
any of its Restricted Subsidiaries, which are $25,000,000 or more
individually or $40,000,000 or more in the aggregate, at any one time
rendered against the Company or any of its Restricted Subsidiaries by a
court of competent jurisdiction and not bonded, satisfied or discharged
for a period (during which execution shall not be effectively stayed)
of (i) 60 days after the judgment becomes final and such court shall
not have ordered or approved, and the parties shall not have agreed
upon, the payment of such judgment at a later date or dates or (ii) 60
days after all or any part of such judgment is payable pursuant to any
court order or agreement between the parties; or
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(h) the Guarantee of any Guarantor shall fail to remain in
full force and effect except in accordance with this Indenture or any
action shall be taken by any Guarantor to discontinue or to assert the
invalidity or unenforceability of its Guarantee, or any Guarantor shall
fail to comply with any of the terms or provisions of its Guarantee, or
any Guarantor denies that it has any further liability under its
Guarantee or gives notice to such effect.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Finance Subsidiary" means any Subsidiary of the Company
substantially all of whose operations consist of (a) the mortgage financing
business or (b) the insurance business.
"Funded Indebtedness" means notes, bonds, debentures or other
similar evidences of Indebtedness for money borrowed which by their terms mature
at or are extendible or renewable at the option of the obligor to a date more
than 12 months after the date of the creation of such debt.
"Guarantee" has the meaning set forth in Section 6.01 hereof.
"Guaranteed Indebtedness" has the meaning set forth in Section
6.06 hereof.
"Guaranteed Obligations" has the meaning set forth in Section
6.01 hereof.
"Guarantors" means M.D.C. Land Corporation, RAH of Texas, LP,
RAH Texas Holdings, LLC, Richmond American Construction, Inc., Richmond American
Homes of Arizona, Inc., Richmond American Homes of California, Inc., Richmond
American Homes of California (Inland Empire), Inc., Richmond American Homes of
Colorado, Inc., Richmond American Homes of Maryland, Inc., Richmond American
Homes of Nevada, Inc., Richmond American Homes of Texas, Inc., Richmond American
Homes of Utah, Inc., Richmond American Homes of Virginia, Inc., and Richmond
American Homes of West Virginia, Inc.; and any other Subsidiary of the Company
that executes and delivers a guarantee of the Notes pursuant to the provisions
of the Indenture.
"Indebtedness" means (a) any liability of any Person (i) for
borrowed money, or (ii) evidenced by a bond, note, debenture or similar
instrument (including a purchase money obligation) given in connection with the
acquisition of any businesses, properties or assets of any kind (other than a
trade payable or a current liability arising in the ordinary course of
business), or (iii) for the payment of money relating to a Capitalized Lease
Obligation or (iv) for all Redeemable Capital Stock valued at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid
dividends; (b) any liability of others described in the preceding clause (a)
that such Person has guaranteed or that is otherwise its legal liability; (c)
all Indebtedness referred to in (but not excluded from) clauses (a) and (b)
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above of other Persons and all dividends of other Persons, the payment of which
is secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Security Interest upon or
in property (including, without limitation, accounts and contract rights) owned
by such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness; and (d) any amendment, supplement, modification,
deferral, renewal, extension or refunding of any liability of the types referred
to in clauses (a), (b) and (c) above.
"Interest Payment Date" means the stated due date of an
installment of interest on the Notes.
"Issue Date" means December 3, 2002, the date of original
issuance of the Notes.
"1998 Indenture" means the indenture dated as of January 28,
1998 between the Company and U.S. Bank National Association as trustee, as
amended or supplemented from time to time.
"Legal Holiday" means a Saturday, a Sunday, a legal holiday or
a day on which banking institutions in Denver, Colorado and
New York,
New York
are not required to be open.
"Non-Recourse Indebtedness" means Indebtedness or other
obligations secured by a lien on property to the extent that the liability for
the Indebtedness or other obligations is limited to the security of the property
without liability on the part of the Company or any Restricted Subsidiary (other
than the Restricted Subsidiary which holds title to the property) for any
deficiency.
"Notes" means the 7.0% Senior Notes due 2012 created under
Article One hereof.
"Paying Agent" means an office or agency where Notes may be
presented for payment.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferential Payment" has the meaning set forth in Section
6.01.
"Preferred Stock" of any Person means all Capital Stock of
such Person which has a preference in liquidation or with respect to the payment
of dividends.
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"Primary Treasury Dealer" means a primary U.S. Government
securities dealer in
New York City.
"Record Date" means a Record Date specified in the Notes
whether or not such Record Date is a Business Day.
"Redeemable Capital Stock" means any Capital Stock of the
Company or any of its Subsidiaries that, either by its terms, by the terms of
any security into which it is convertible or exchangeable or otherwise, (a) is
or upon the happening of an event or passage of time would be required to be
redeemed on or prior to the final stated maturity of the securities or (b) is
redeemable at the option of the holder thereof at any time prior to such final
stated maturity or (c) is convertible into or exchangeable for debt securities
at any time on or prior to such final stated maturity.
"Redemption Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and Paragraph 5 of the Notes.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price for such redemption pursuant to Paragraph 5 of the
Notes, which shall include, without duplication, in each case, accrued and
unpaid interest to the Redemption Date.
"Reference Treasury Dealer" means (a) Xxxxxxx Xxxxx Xxxxxx
Inc., or one of the other Underwriters for the Notes, issued on the Issue Date
(or their respective affiliates which are Primary Treasury Dealers), and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a Primary Treasury Dealer, the Company will substitute therefor
another Primary Treasury Dealer, and (b) any other Primary Treasury Dealer(s)
selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third Business Day preceding such Redemption Date.
"Registrar" means the office or agency where Notes may be
presented for registration of transfer or for exchange.
"Remaining Scheduled Payments" means, with respect to any
Note, the remaining scheduled payments of the principal thereof to be redeemed
and interest thereon that would be due after the related Redemption Date but for
such redemption; provided, however, that if such Redemption Date is not an
Interest Payment Date with respect to such Note, the
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amount of the next succeeding scheduled interest payment thereon will be reduced
by the amount of interest accrued thereon to such Redemption Date.
"Restricted Subsidiary" means any Guarantor and any successor
to such Guarantor.
"Sale and Leaseback Transaction" means a sale or transfer made
by the Company or a Restricted Subsidiary (except a sale or transfer made to the
Company or a Restricted Subsidiary) of any property which is either (a) a
manufacturing facility, office building or warehouse whose book value equals or
exceeds 1% of Consolidated Net Tangible Assets as of the date of determination
or (b) another property (not including a model home) which exceeds 5% of
Consolidated Net Tangible Assets as of the date of determination, if such sale
or transfer is made with the agreement, commitment or intention of leasing such
property to the Company or a Restricted Subsidiary for more than a three-year
term.
"Secured Debt" means any Indebtedness, except Indebtedness of
the Finance Subsidiaries, which is secured by (i) a Security Interest in any of
the property of the Company or any Restricted Subsidiary or (ii) a Security
Interest in shares of stock owned directly or indirectly by the Company or a
Restricted Subsidiary in a corporation or in equity interests owned by the
Company or a Restricted Subsidiary in a partnership or other entity not
organized as a corporation or in the Company's rights or the rights of a
Restricted Subsidiary in respect of Indebtedness of a corporation, partnership
or other entity in which the Company or a Restricted Subsidiary has an equity
interest. The securing in the foregoing manner of any such Indebtedness which
immediately prior thereto was not Secured Debt shall be deemed to be the
creation of Secured Debt at the time security is given.
"Security Interests" means any mortgage, pledge, lien,
encumbrance or other security interest which secures the payment or performance
of an obligation.
"Significant Subsidiary" means any Subsidiary (a) whose
revenues exceed 10% of our total consolidated revenues, in each case for the
most recent fiscal year, or (b) whose net worth exceeds 10% of our total
stockholders' equity, in each case as of the end of the most recent fiscal year.
"Specified Indebtedness" means Indebtedness under (i) the
Notes, (ii) the 1998 Indenture, and (iii) the Second Amended and Restated Credit
Agreement dated as of July 30, 2002, among the Company and the banks named
therein, as amended or supplemented from time to time, and any refinancing,
extension, renewal or replacement of any of the foregoing.
"Stated Maturity" when used with respect to any Note, means
December 1, 2012.
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"Subordinated Indebtedness" means Indebtedness of the Company
which is subordinated in right of payment to the prior payment in full,
including all payment of principal, premium and all accrued interest (and
post-petition interest) on, and all other amounts owing in connection with the
Notes.
"Subsidiary" means any Person of which at the time of
determination by the Company, directly and/or indirectly through one or more
Subsidiaries, the Company owns more than 50% of the shares of its Voting Stock.
"Supplemental Indenture" has the meaning set forth in Article
One hereof.
"TIA" means the Trust Indenture Act of 1939, as in effect from
time to time.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor serving hereunder.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of any Person (irrespective of whether or not, at the time,
stock of any other class or classes shall have, or might have, voting power by
reason of the happening of any contingency).
ARTICLE THREE
REDEMPTION
Section 3.01. Right of Redemption.
Redemption of Notes, as permitted by any provision of this
Indenture, shall be made in accordance with such provision and Article Three of
the Indenture.
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The Notes may be redeemed at the election of the Company, in
whole at any time or in part from time to time, on at least 30 but not more than
60 days' prior notice, at a Redemption Price equal to the greater of (i) 100% of
their principal amount, and (ii) the present value of the Remaining Scheduled
Payments on the Notes being redeemed on the Redemption Date, discounted to the
Redemption Date, on a semiannual basis, at the Treasury Rate plus 45 basis
points (0.45%), plus, in each case, accrued and unpaid interest, if any, on the
Notes to the Redemption Date. In determining the Redemption Price and accrued
interest, interest shall be calculated on the basis of a 360-day year consisting
of twelve 30-day months.
If money sufficient to pay the redemption price of and accrued
interest on the Notes to be redeemed is deposited with the Trustee on or before
the Redemption Date, on and after the Redemption Date interest will cease to
accrue on the Notes (or such portions thereof) called for redemption and the
Notes will cease to be outstanding.
On and after the Redemption Date, interest will cease to
accrue on the Notes or any portion of the Notes called for redemption (unless
the Company defaults in the payment of the redemption price and accrued
interest). On or before the Redemption Date, the Company will deposit with a
paying agent (or the Trustee) money sufficient to pay the redemption price of
and accrued interest on the Notes to be redeemed on that date. If less than all
of the Notes are to be redeemed, the Notes to be redeemed shall be selected by
lot by DTC, in the case of Notes represented by a global security.
ARTICLE FOUR
COVENANTS
The following additional covenants will apply with respect to
the Notes:
Section 4.01. Restrictions on Secured Debt.
The Company will not, and will not cause or permit a
Restricted Subsidiary (other than any Finance Subsidiary) to, create, incur,
assume or guarantee any Secured Debt unless the Notes will be secured equally
and ratably with (or prior to) such Secured Debt, with certain exceptions. This
restriction does not prohibit the creation, incurrence, assumption or guarantee
of Secured Debt which is secured by:
(1) Security Interests in model homes, homes held for sale,
homes that are under contract for sale, contracts for the sale of
homes, land (improved or unimproved), manufacturing plants, warehouses
or office buildings and fixtures and equipment located thereat or
thereon;
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(2) Security Interests in property at the time of its
acquisition by the Company or a Restricted Subsidiary, including
Capitalized Lease Obligations, which Security Interests secure
obligations assumed by the Company or a Restricted Subsidiary, or in
the property of a corporation or other entity at the time it is merged
into or consolidated with the Company or a Restricted Subsidiary (other
than Secured Debt created in contemplation of the acquisition of such
property or the consummation of such a merger or where the Security
Interest attaches to or affects the property of the Company or a
Restricted Subsidiary prior to such transaction);
(3) Security Interests arising from conditional sales
agreements or title retention agreements with respect to property
acquired by the Company or a Restricted Subsidiary;
(4) Security Interests incurred in connection with pollution
control, industrial revenue, water, sewage or any similar item; and
(5) Security Interests securing Indebtedness of a Restricted
Subsidiary owing to the Company or a Restricted Subsidiary that is
wholly owned (directly or indirectly) by the Company or Security
Interests securing the Company's Indebtedness owing to a Guarantor.
Such permitted Secured Debt also includes any amendment,
restatement, supplement, renewal, replacement, extension or refunding, in whole
or in part, of Secured Debt permitted at the time of the original incurrence
thereof.
In addition, the Company and the Guarantors may create, incur,
assume or guarantee Secured Debt, without equally and ratably securing the
Notes, if immediately thereafter the sum of (1) the aggregate principal amount
of all Secured Debt outstanding (excluding Secured Debt permitted under clauses
(1) through (5) above and any Secured Debt in relation to which the Notes have
been equally and ratably secured) and (2) all Attributable Debt in respect of
Sale and Leaseback Transactions (excluding Attributable Debt in respect of Sale
and Leaseback Transactions as to which the provisions of clauses (1) through (3)
under Section 4.02 have been complied with) as of the date of determination
would not exceed 20% of Consolidated Net Tangible Assets.
The provisions described above with respect to limitations on
Secured Debt are not applicable to Non-Recourse Indebtedness by virtue of the
definition of Secured Debt, and will not restrict the Company's or the
Guarantors' ability to create, incur, assume or guarantee
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any unsecured Indebtedness, or of any Subsidiary which is not a Restricted
Subsidiary to create, incur, assume or guarantee any secured or unsecured
Indebtedness.
Section 4.02. Limitations on Sale and Leaseback Transactions.
The Company will not, and will not cause or permit any
Restricted Subsidiary to, enter into any Sale and Leaseback Transaction unless
(1) the net proceeds to the Company or such Restricted Subsidiary from such sale
or transfer equal or exceed the fair value (as determined by the Board of
Directors, chairman of the board, vice chairman, president or principal
financial officer of the Company) of the property or asset so leased, (2) the
Company or such Restricted Subsidiary would be entitled to incur Secured Debt
pursuant to Section 4.01, (3) the Company or any Restricted Subsidiary shall,
and in any case the Company and the Restricted Subsidiaries, covenant that they
will, within 180 days of the effective date of any Sale and Leaseback
Transaction, apply an amount equal to the fair value of the property so leased
to the retirement of Funded Indebtedness, (4) the Sale and Leaseback Transaction
relates to a sale which occurred within 180 days from the date of acquisition of
such property or asset by the Company or a Restricted Subsidiary or the date of
the completion of construction or commencement of full operations on such
property, whichever is later, or (5) the Sale and Leaseback Transaction was
consummated prior to the date of this Supplemental Indenture.
Section 4.03. Additional Guarantees.
The Company shall not permit any Subsidiary that is not a
Guarantor, directly or indirectly, to guarantee any obligations of the Company
under the Specified Indebtedness unless such Subsidiary simultaneously executes
and delivers to the Trustee a supplemental indenture, in a form reasonably
satisfactory to the Trustee, pursuant to which such Subsidiary guarantees,
jointly and severally with all other Guarantors, on the same basis as the
Specified Indebtedness is guaranteed, the Company's obligations under the
Indenture and the Notes. The Company shall deliver to the Trustee an opinion of
counsel that such supplemental indenture has been duly authorized, executed and
delivered by such Subsidiary and, subject to customary exceptions, constitutes a
valid and legally binding and enforceable obligation of such Subsidiary.
Section 4.04. SEC Reports.
The Company shall deliver to the Trustee and each Holder,
within 15 days after it files the same with the SEC, copies of all reports and
information (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe), if any, exclusive of exhibits, which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act or pursuant to the immediately following sentence. So long as any
Notes remain outstanding, the Company shall file with the Commission such
reports as may be required pursuant to Section 13 of the Exchange Act in respect
of a security registered
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pursuant to Section 12 of the Exchange Act. If the Company is not subject to the
requirements of Section 13 or 15(d) of the Exchange Act (or otherwise required
to file reports pursuant to the immediately preceding sentence), the Company
shall deliver to the Trustee and to each Holder, within 15 days after it would
have been required to file such information with the SEC were it required to do
so, financial statements, including any notes thereto (and, in the case of a
fiscal year end, an auditors' report by an independent certified public
accounting firm of established national reputation), and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
substantially equivalent to that which it would have been required to include in
such quarterly or annual reports, information, documents or other reports if it
had been subject to the requirements of Section 13 or 15(d) of the Exchange Act.
The Company shall also comply with the other provisions of TIA Section 314(a).
The Trustee has no duty to review the financial reports and
other information for the purpose of determining compliance with any provision
of this Indenture.
ARTICLE FIVE
SUCCESSOR CORPORATION
Article Five of the Indenture is replaced with the following
in its entirety:
Section 5.01. Consolidation, Merger and Sale of Assets.
Neither the Company nor the Guarantors will consolidate or
merge into or sell, assign, transfer or lease all or substantially all of their
assets to another person unless:
(1) the person is a corporation organized under the laws of
the United States of America or any state thereof;
(2) the person assumes by supplemental indenture, in a form
reasonably satisfactory to the Trustee, all of the obligations of the
Company or such Guarantor, as the case may be, relating to the Notes,
the Guarantees and the Indenture, as the case may be; and
(3) immediately after the transaction no Event of Default
exists; provided that this clause (3) will not restrict or be
applicable to a merger, consolidation or liquidation of a Guarantor
with or into the Company or another Subsidiary that is wholly owned,
directly or indirectly, by the Company that is, or concurrently with
the completion of such merger, consolidation or liquidation becomes, a
Guarantor or a Restricted Subsidiary that is wholly owned, directly or
indirectly, by the Company.
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Upon any such consolidation, merger, sale, assignment or
transfer, the successor corporation will be substituted for the Company or such
Guarantor (including any merger or consolidation described in the proviso at the
end of the immediately preceding sentence), as applicable, under the Indenture.
The successor corporation may then exercise every power and right of the Company
or such Guarantor under the Indenture, and the Company or such Guarantor, as
applicable, will be released from all of its respective liabilities and
obligations in respect of the Notes and the Indenture. If the Company or any
Guarantor leases all or substantially all of its assets, the lessee corporation
will be the successor to the Company or such Guarantor and may exercise every
power and right of the Company or such Guarantor, as the case may be, under the
Indenture, but the Company or such Guarantor, as the case may be, will not be
released from its respective obligations to pay the principal of and premium, if
any, and interest, if any, on the Notes.
ARTICLE SIX
GUARANTEES
Section 6.01. Unconditional Guarantee.
Each Guarantor hereby fully and unconditionally, jointly and
severally, guarantees (each such guarantee to be referred to herein as the
"Guarantee") to the Holders of the Notes and to the Trustee and its successors
and assigns that: (i) the principal of and interest on the Notes will be
promptly paid in full when due, subject to any applicable grace period, whether
at maturity, by acceleration or otherwise and interest on the overdue principal,
if any, and interest on any interest of the Notes and all other obligations of
the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and (ii) in case of any extension of time of payment or renewal of any
Notes or of any such other obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration or otherwise (collectively, the "Guaranteed Obligations"), subject,
however, in the case of clauses (i) and (ii) above, to the limitations set forth
in Section 6.02. Each Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of Notes with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
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The obligations of the Guarantors 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 Section 6.06 hereof, 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
Guarantee, 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 Guarantors agree 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 Guarantee 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.
Section 6.02. Fraudulent Conveyance Limitation.
Notwithstanding any contrary provision, the amount of the
Guaranteed Obligations guaranteed by the Guarantor under this Guarantee 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 Guarantee 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 Guarantee 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.
-17-
Section 6.03. Waiver.
Each 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 Guarantee; (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 Guarantee) of the
liability of the Company for the Guaranteed Obligations. Each 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 Guarantors' obligations hereunder. Until
payment in full of the Guaranteed Obligations, no Guarantor shall have a 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.
Section 6.04. Subordinated Indebtedness.
If from time to time the Company shall have liabilities or
obligations to the Guarantors, 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.
Each 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.
Each 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
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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, each 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 each Guarantor hereby
agrees, from time to time and upon request, to make, execute and deliver to the
Trustee such powers of attorney,
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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 a Guarantor upon or
with respect to the Subordinated Indebtedness prior to the satisfaction of the
Guaranteed Obligations, such 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 the 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.
Each 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 each Guarantor at any time during
business hours. Each 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 Guarantee.
Section 6.05. Execution of Guarantee.
Each Guarantor hereby agrees to execute a notation of
Guarantee in substantially the form attached to the form of Note, and to deliver
such notation to the Trustee.
Section 6.06. Additional Guarantees and Release of Guarantees.
(a) The Company shall not permit any of its Restricted
Subsidiaries, directly or indirectly, to guarantee any Specified Indebtedness
("Guaranteed Indebtedness") unless 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 guarantee of such Guaranteed Indebtedness shall
rank pari passu with, or be subordinated in
-20-
right of payment to, the Guarantee of such Restricted Subsidiary or (2) is
subordinated by its terms in right of payment to the Notes, then the guarantee
of such Guaranteed Indebtedness shall be subordinated to the Guarantee of such
Restricted Subsidiary at least to the extent that the Guaranteed Indebtedness is
subordinated to the Notes.
(b) The Guarantee of any Guarantor will be automatically and
unconditionally released and discharged so long as:
(i) no Default or Event of Default exists or would
result from release of such Guarantee;
(ii) the Guarantor being released has Consolidated
Net Worth of less than 5% of the Company Consolidated Net
Worth as of the end of the most recent fiscal quarter;
(iii) the Guarantors released from their Guarantees
in any year-end period comprise in the aggregate less than 10%
(or 15% if and to the extent necessary to permit the Company
to cure a Default) of the Company's Consolidated Net Worth as
of the end of the most recent fiscal quarter;
(iv) such release would not have a material adverse
effect on the homebuilding business of the Company and its
Subsidiaries; and
(v) the Guarantor is released from its guarantee(s)
under the Specified Indebtedness;
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 the Indenture relating to such transactions have been
complied with and that such release is authorized and permitted under the
Indenture.
(c) If there are no guarantors under any Specified
Indebtedness, Guarantors under this Indenture Supplement will be released from
their Guarantees.
-21-
ARTICLE SEVEN
MISCELLANEOUS
Section 7.01. Confirmation of Indenture.
The Indenture, as supplemented and amended by this
Supplemental Indenture, is in all respects ratified and confirmed, and the
Indenture, this Supplemental Indenture and all indentures supplemental thereto
shall be read, taken and construed as one and the same instrument.
Section 7.02. 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 Supplemental
Indenture.
Section 7.03. Governing Law.
This Supplemental Indenture, the Indenture, the Notes, and the
Guarantee shall be governed by the laws of the State of
New York.
Section 7.04. Separability.
In case any one or more of the provisions contained in this
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 Supplemental Indenture, but this
Supplemental Indenture shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
Section 7.05. Counterparts.
This 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.
Section 7.06. No Adverse Interpretation of Other Agreements.
This Supplemental Indenture may not be used to interpret
another indenture, loan or debt agreement of the Company or a Subsidiary. Any
such indenture, loan or debt agreement may not be used to interpret this
Supplemental Indenture.
-22-
Section 7.07. No Recourse Against Others.
All liability described in Paragraph 12 of the Notes of any
director, officer, employee or stockholder, as such, of the Company or any
Guarantor is waived and released.
Section 7.08. Successors and Assigns.
All covenants and agreements of the Company and the Guarantors
in this Supplemental Indenture and the Notes shall bind its successors and
assigns. All agreements of the Trustee in this Supplemental Indenture shall bind
its successors and assigns.
Section 7.09. Duplicate Originals.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 7.10. Severability.
In case any one or more of the provisions contained in this
Supplemental Indenture or in the Notes 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 Supplemental
Indenture or of the Notes.
[Signature Page Follows]
S-1
SIGNATURES
IN WITNESS WHEREOF, the parties have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
GUARANTORS:
M.D.C LAND CORPORATION
RAH OF TEXAS, LP
RAH TEXAS HOLDINGS, LLC
RICHMOND AMERICAN CONSTRUCTION, INC.
RICHMOND AMERICAN HOMES OF ARIZONA, INC.
RICHMOND AMERICAN HOMES OF CALIFORNIA,
INC.
RICHMOND AMERICAN HOMES OF
CALIFORNIA (INLAND EMPIRE), INC.
RICHMOND AMERICAN HOMES OF COLORADO, INC.
RICHMOND AMERICAN HOMES OF
MARYLAND, INC.
RICHMOND AMERICAN HOMES OF
NEVADA, INC.
RICHMOND AMERICAN HOMES OF
TEXAS, INC.
RICHMOND AMERICAN HOMES OF
UTAH, INC.
RICHMOND AMERICAN HOMES OF
VIRGINIA, INC.
RICHMOND AMERICAN HOMES OF
WEST VIRGINIA, INC.
By:
--------------------------------------
Name:
Title:
S-2
U.S. Bank National Association, as Trustee
By:
-----------------------------------------
Name:
Title: Authorized Signatory
Exhibit A
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1
CUSIP No.: 552676
7.0% Senior Notes due 2012
M.D.C. HOLDINGS, INC.
a Delaware corporation
promises to pay to
Cede & Co.
or registered assigns
the principal sum of $150,000,000 on
December 1, 2012.
7.0% Senior Notes due 2012
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Dated: December 3, 2002
M.D.C. HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
A-2
U.S. Bank National Association, as Trustee, certifies that this
is one of the Notes referred to in the within mentioned
Indenture.
By:
-----------------------------------------
Name:
Authorized Signatory
A-3
M.D.C. HOLDINGS, INC.
7.0% Senior Notes due 2012
1. Interest.
M.D.C. HOLDINGS, INC. (the "Company"), a Delaware corporation,
promises to pay interest on the principal amount of this Note at the rate per
annum shown above. The Company will pay interest semiannually on June 1 and
December 1 of each year until the principal is paid or made available for
payment. Interest on the Notes will accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid,
from December 3, 2002; provided that, if there is no existing default in the
payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding interest payment date,
interest shall accrue from such interest payment date. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Notes (except defaulted
interest, if any, which will be paid on such special payment date to Holders of
record on such special record date as may be fixed by the Company) on each
Interest Payment Date to the persons who are registered Holders of Notes at the
close of business on the May 15 and November 15 preceding such Interest Payment
Date. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts.
3. Paying Agent and Registrar.
Initially, U.S. Bank National Association (the "Trustee") will
act as Paying Agent and Registrar. The Company may change or appoint any Paying
Agent, Registrar or co-Registrar without notice. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture dated as of
December 3, 2002 between the Company and the Trustee, as supplemented by a
Supplemental Indenture dated as of December 3, 2002 among the Company, the
Guarantors and the Trustee (together, the "Indenture"). The terms of the Notes
and the Guarantees include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 ("TIA") as in
effect on the date of the Indenture. The Notes and the Guarantees are subject to
all such terms, and Holders are referred to the Indenture and the TIA for a
statement of them.
A-4
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to: M.D.C.
Holdings, Inc., 0000 Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
Attention: Secretary.
5. Optional Redemption.
The Notes will be redeemable at the option of the Company, in
whole at any time or in part from time to time, on at least 30 but not more than
60 days' prior notice, at a Redemption Price equal to the greater of (i) 100% of
their principal amount, and (ii) the present value of the Remaining Scheduled
Payments on the Notes being redeemed on the Redemption Date, discounted to the
Redemption Date, on a semiannual basis, at the Treasury Rate plus 45 basis
points (0.45%), plus, in each case, accrued and unpaid interest on the Notes to
the Redemption Date. In determining the Redemption Price and accrued interest,
interest shall be calculated on the basis of a 360-day year consisting of twelve
30-day months.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Notes to be
redeemed at his registered address. Notes in denominations larger than $1,000
may be redeemed in part. On and after the Redemption Date, interest ceases to
accrue on Notes or portions of them called for redemption; provided that if the
Company shall default in the payment of such Note at the redemption price
together with accrued interest, interest shall continue to accrue at the rate
borne by the Notes.
6. Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. A Holder may transfer
or exchange Notes by presentation of such Notes to the Registrar or a
co-Registrar with a request to register the transfer or to exchange them for an
equal principal amount of Notes of other denominations. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not transfer or exchange any Note selected for
redemption, except the unredeemed part thereof if the Note is redeemed in part,
or transfer or exchange any Notes for a period of 15 days before a selection of
Notes to be redeemed.
7. Persons Deemed Owners.
The registered Holder of this Note shall be treated as the
owner of it for all purposes.
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8. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the money back to
the Company at its request. After that, Holders entitled to the money must look
to the Company for payment unless an abandoned property law designates another
person.
9. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the outstanding Notes and any past default or
compliance with any provision relating to the Notes may be waived in a
particular instance with the consent of the Holders of a majority in principal
amount of the outstanding Notes. Without the consent of any Holder, the Company
and the Trustee may amend or supplement the Indenture or the Notes to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to remove a Guarantor which, in
accordance with the terms of the Supplemental Indenture, ceases to be liable in
respect of its Guarantee, or to make any other change, provided such action does
not adversely affect the rights of any Holder.
10. Successor Corporation.
When a successor corporation assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor corporation
will be released from those obligations, except that a lease of all or
substantially all its assets does not release the predecessor from its
obligations to pay the principal of and premium, if any, and interest, if any,
on the Notes.
11. Trustee Dealings With Company.
U.S. Bank National Association, the Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not Trustee.
12. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Notes or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
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13. Discharge of Indenture.
The Indenture contains certain provisions pertaining to
defeasance, which provisions shall for all purposes have the same effect as if
set forth herein.
14. Authentication.
This Note shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Note.
15. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
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ASSIGNMENT FORM
If you, the Holder, want to assign this Note, fill in the form
below:
I or we assign and transfer this Note to:
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(Insert assignee's social security or tax ID number)
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(Print or type assignee's name, address, and zip code)
and irrevocably appoint:
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agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your signature:
------------------------ -----------------------------------
(Sign exactly as your name appears
on the other side of this Note)
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Signature Guarantee:
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SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
GUARANTEE
The undersigned (the "Guarantors") have fully and
unconditionally guaranteed, jointly and severally (such guarantee by each
Guarantor being referred to herein as the "Guarantee") (i) the due and punctual
payment of the principal of and interest on the Notes, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal and interest, if any, on the Notes, to the extent lawful, and
the due and punctual performance of all other obligations of the Company to the
Holders or the Trustee all in accordance with the terms set forth in Article Six
of the Supplemental Indenture and (ii) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, by acceleration or
otherwise.
No past, present or future stockholder, officer, director,
employee or incorporator, as such, of any of the Guarantors shall have any
liability under the Guarantee by reason of such person's status as stockholder,
officer, director, employee or incorporator. Each holder of a Note by accepting
a Note waives and releases all such liability. This waiver and release are part
of the consideration for the issuance of the Guarantees.
Each holder of a Note by accepting a Note agrees that any
Guarantor named below shall have no further liability with respect to its
Guarantee if such Guarantor otherwise ceases to be liable in respect of its
Guarantee in accordance with the terms of the Supplemental Indenture.
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The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which the
Guarantee is noted shall have been executed by the Trustee under the
Supplemental Indenture by the manual signature of one of its authorized
officers.
[GUARANTORS]
By:
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Name:
Title:
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