Third Supplemental Indenture (7.0% Senior Notes Due 2012), dated as of February 12, 2004, by and among MDC, U.S. Bank National Association, as Trustee, and the following wholly owned subsidiaries of the Company: Richmond American Homes of Delaware, Inc., a Colorado corporation, Richmond American Homes of Illinois, Inc., a Colorado corporation, Richmond American Homes of New Jersey, Inc., a Colorado corporation, and Richmond American Homes of Pennsylvania, Inc., a Colorado corporation, as Additional Guarantors, including the Guaranty signed by the Additional Guarantors
Exhibit 4.6 THIRD SUPPLEMENTAL INDENTURE |
Each of 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 persons 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 |
2 |
Guarantor otherwise ceases to be liable in respect of its Guarantee in accordance with the terms of the Supplemental Indenture. |
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. |
SECTION 1.02. Execution of Guarantee. To evidence the Guarantee specified in Section 1.01, the Additional Guarantors hereby agree to execute the Guarantee in substantially the form set forth above, and to deliver such Guarantee to the Trustee, which shall deliver such Guarantee to each Holder as an endorsement to the Notes held by such Holder, or alternatively hold such Guarantee on behalf of each such Holder. ARTICLE II MISCELLANEOUS SECTION 2.01. Confirmation of Indenture. The Indenture, as supplemented and amended by this Third Supplemental Indenture, is in all respects ratified and confirmed, and the Indenture, this Third 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 the Indenture shall not be modified by reason of this Third Supplemental Indenture. SECTION 2.03. Governing Law. This Third Supplemental Indenture, the Indenture, the Notes, and the Guarantee 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 Third 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 Third Supplemental Indenture, but this Third Supplemental Indenture shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. SECTION 2.05. Counterparts. This Third 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. [Remainder of page intentionally left blank]3 IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the day and year first above written. M.D.C. HOLDINGS, INC. |
By: /s/ John J. Heaney ________________________________ Name: John J. Heaney Title: Senior Vice President and Treasurer |
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Lori Anne Rosenberg ________________________________ Name: Lori Anne Rosenberg Title: Assistant Vice President |
RICHMOND AMERICAN HOMES OF DELAWARE, INC.
By: /s/ John J. Heaney ________________________________ Name: John J. Heaney Title: Vice President and Treasurer |
RICHMOND AMERICAN HOMES OF ILLINOIS, INC.
By: /s/ John J. Heaney ________________________________ Name: John J. Heaney Title: Vice President and Treasurer |
RICHMOND AMERICAN HOMES OF NEW JERSEY, INC.
By: /s/ John J. Heaney ________________________________ Name: John J. Heaney Title: Vice President and Treasurer |
RICHMOND AMERICAN HOMES OF PENNSYLVANIA, INC.
By: /s/ John J. Heaney ________________________________ Name: John J. Heaney Title: Vice President and Treasurer |
4 |