exv10w1



 







Exhibit 10.1




$1,000,000,000

M.D.C. HOLDINGS, INC.

MEDIUM-TERM SENIOR NOTES

MEDIUM-TERM SUBORDINATED NOTES

AMENDED AND RESTATED DISTRIBUTION AGREEMENT




New York, New York

October 6, 2004, as amended and

restated as of January 9, 2006




	 	 	 
	Banc of America Securities LLC

	 	J.P. Morgan Securities Inc.
	214 North Tryon Street

	 	270 Park Avenue, 8th Floor
	NC1-027-14-01

	 	New York, New York 10017
	Charlotte, North Carolina 28255
	 	 
	 
	 	 
	BNP Paribas

	 	McDonald Investments Inc.
	787 Seventh Avenue

	 	127 Public Square, 4th Floor
	New York, New York 10019

	 	Mail Code: OH-01-27-0406
	 

	 	Cleveland, Ohio 44114
	 
	 	 
	Citigroup Global Markets Inc.

	 	Merrill Lynch, Pierce Fenner & Smith Incorporated
	388 Greenwich Street

	 	4 World Financial Center
	New York, New York 10013

	 	New York, New York 10080
	 
	 	 
	Comerica Securities

	 	SunTrust Robinson Humphrey Capital Markets
	211 West Forth Street, 3rd Floor

	 	303 Peachtree Street, NE
	Mail Code: 3089

	 	23rd Floor, MC: GA-ATL-3939
	Detroit, Michigan 48226

	 	Atlanta, Georgia 30308
	 
	 	 
	Credit Suisse First Boston LLC

	 	UBS Securities LLC
	11 Madison Avenue, 5th Floor

	 	677 Washington Boulevard
	New York, New York 10010

	 	Stamford, Connecticut 06901
	 
	 	 
	Deutsche Bank Securities Inc.

	 	Wachovia Capital Markets, LLC
	60 Wall Street, 45th Floor

	 	301 South College Street
	New York, New York 10005

	 	NC0606
	 

	 	Charlotte, North Carolina 28288
	 
	 	 
	Greenwich Capital Markets, Inc.
	 	 
	600 Steamboat Road
	 	 
	Greenwich, Connecticut 06830
	 	 





 









 





Ladies and Gentlemen:




     M.D.C. Holdings, Inc., a Delaware corporation (the “Company”), confirms its agreement
with each of you (each an “Agent” and, together with the additional agents which may become
a party hereto pursuant to Section 13, the “Agents”) with respect to the issuance
and sale by the Company of up to $1,000,000,000 aggregate public offering price (or such higher or
lower amount as may be specified in any prospectus supplement subsequently filed by the Company
with the Securities and Exchange Commission with respect to the Notes) of its Medium-Term Senior
Notes Due Nine Months or More from the Original Issue Date (the “Senior Notes”) and its
Medium-Term Subordinated Notes Due Nine Months or More from the Original Issue Date (the
“Subordinated Notes” and together with the Senior Notes, the “Notes”). The Senior
Notes are to be issued from time to time pursuant to an indenture dated as of December 3, 2002,
between the Company and U.S. Bank National Association, as trustee (the “Trustee”), and one
or more supplemental indentures, including the Supplemental Indenture dated as of October 6, 2004
(the “MTN Supplemental Indenture”), by and among the Company, certain subsidiaries of the
Company and the Trustee (such indenture, as supplemented by such supplemental indenture(s) or
authorizing resolution(s), the “Senior Indenture”). The Subordinated Notes are to be
issued from time to time pursuant to an indenture dated as of October 6, 2004 between the Company
and the Trustee, and one or more supplemental indentures, including the MTN Supplemental Indenture,
by and among the Company, certain subsidiaries of the Company and the Trustee (such indenture, as
supplemented by such supplemental indenture(s) or authorizing resolution(s), the “Subordinated
Indenture” and together with the Senior Indenture, the “Indentures”). The Company’s
obligations under the Senior Indenture and the Senior Notes will be unconditionally guaranteed (the
“Guarantees”), jointly and severally, by each of the wholly owned subsidiaries of the
Company listed on the signature pages hereof (the “Guarantors”). The Senior Notes and the
Guarantees and the Subordinated Notes are collectively referred to herein as the
“Securities.” The Company and the Guarantors are collectively referred to herein as the
“Issuers”. This Distribution Agreement (this “Agreement”) amends and restates the
Distribution Agreement dated as of October 6, 2004, as amended by Amendment No. 1 dated as of July
20, 2005, each among the Company and the Agents.



     On December 14, 2004, the Company issued $250,000,000 aggregate public offering price of
Notes. On July 7, 2005 the Company issued an additional $250,000,000 aggregate public offering
price of Notes, leaving availability of $500,000,000 aggregate public offering price of Notes
following such issuance.



     The Notes shall have the maturity dates, applicable interest rates or interest rate formulas,
issue prices, redemption and repayment provisions and other terms set forth in the Prospectus
referred to in Section 1(a) as it may be amended or supplemented from time to time,
including any supplement providing for the interest rate, maturity and other terms of any Note (a
“Pricing Supplement”). The Notes will be issued, and the terms thereof established, from
time to time, by the Company in accordance with the applicable Indenture and the Procedures (as
defined in Section 2(f)). This Agreement shall apply only to sales of the Notes and not to
sales of any other securities or evidences of indebtedness of the Company and only on the specific
terms set forth herein.



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     Subject to the terms and conditions stated herein and to the reservation by the Company of the
right to sell Notes directly to investors on its own behalf, and to designate and select additional
agents in accordance with Section 13, the Company hereby (i) appoints each of the Agents as
the agent of the Company for the purpose of soliciting and receiving offers to purchase Notes from
the Company and (ii) agrees that whenever the Company determines to sell Notes directly to an Agent
as principal, it will enter into a separate agreement (each a “Purchase Agreement”). Each
such Purchase Agreement, whether oral (any such oral agreement shall be confirmed in writing, which
may be by facsimile or other electronic transmission) or in writing, shall be with respect to such
information (as applicable) as specified in Exhibit B hereto, relating to such sale in
accordance with Section 2(e).



     Certain capitalized terms have the meanings given to them in Section 17. Any
reference herein to the “Registration Statement,” the “Prospectus” or
“Permitted Free Writing Prospectus” shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or the issue date of
such Prospectus or any then applicable Permitted Free Writing Prospectus, as the case may be; and
any reference herein to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of any Prospectus, as the case may be, deemed to be incorporated
therein by reference. Notwithstanding the foregoing, for purposes of this Agreement any prospectus
supplement prepared or filed with respect to any offering pursuant to the Registration Statement of
securities other than the Notes shall not be deemed to have supplemented the Prospectus.



SECTION 1. REPRESENTATIONS AND WARRANTIES




     The Issuers in respect of the Senior Notes, jointly and severally, represent and warrant, and
the Company in respect of the Subordinated Notes represents and warrants, to each Agent as of the
Commencement Date (as defined in Section 2(g)) and as of the times referred to in
Section 6(a) and Section 6(b) to each Agent participating in such sale (the
Commencement Date and each such time being hereinafter sometimes referred to as a
“Representation Date”), as follows:



     (a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and
filed with the Securities and Exchange Commission (the “Commission”) a registration
statement (file number 333-130069) on Form S-3, including a related base prospectus, for the
registration under the Act of the offering and sale of the Securities. The Company is a well known
seasoned issuer (as defined under Rule 405 of the Act), including not having been an ineligible
issuer (as defined under Rule 405 of the Act) with respect to the offering of the Securities in
each case at the times specified in the Act in connection with the offering of the Securities. The
Registration Statement is an “automatic effective registration statement” (as defined under Rule
405 of the Act) that has been filed with the Commission on December 1, 2005 and has become
automatically effective pursuant to Rule 462(e) of the Act; and no notice of objection of the
Commission to the use of such registration statement or any



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post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by
the Company. The Company may have filed one or more amendments thereto, each of which has
previously been furnished to you. The Company will next file with the Commission one of the
following: (1) a final prospectus (including a prospectus supplement) in accordance with Rules
430A and 424(b), or (2) a final prospectus (including a prospectus supplement) in accordance with
Rules 415 and 424(b). In the case of clause (1), the Company has included in such registration
statement, as amended at the Commencement Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in such registration statement and the
Prospectus. As filed, such amendment and form of final prospectus, or such final prospectus, shall
contain all Rule 430A Information, together with all other such required information, and, except
to the extent the Agents shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Commencement Date or, to the extent not
completed at the Commencement Date, shall contain only such specific additional information and
other changes as the Company has advised you, prior to the Commencement Date, will be included or
made therein. If the Registration Statement contains the undertaking specified by Regulation S-K
Item 512(a), the Registration Statement, at the Commencement Date, meets the requirements set forth
in Rule 415(a)(1)(x).




     (b) The Registration Statement, on the Effective Date and on the date of the Prospectus and
all applicable Permitted Free Writing Prospectuses, if any, and each amendment or supplement
thereto, and the Prospectus and all applicable Permitted Free Writing Prospectuses, if any, and
each amendment or supplement thereto, at their respective dates, did and will comply in all
material respects with the applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on the Effective Date and at the Commencement
Date, the Registration Statement did not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to make the statements
therein not misleading; on the Effective Date and on the Commencement Date, the Indentures did and
will comply in all material respects with the requirements of the Trust Indenture Act and the rules
thereunder; and none of the Prospectus, all applicable Permitted Free Writing Prospectuses, if any,
or any amendment or supplement thereto, on any date of filing thereof or on any Representation Date
did or will contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee or (ii) the information contained in or omitted from the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus, if any (or any amendment or supplement
thereto) in reliance upon and in conformity with information furnished herein or in writing to the
Company by or on behalf of any Agent specifically for inclusion in the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus, if any (or any amendment or supplement
thereto).



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     (c) Each Issuer and its subsidiaries has been duly organized and is validly existing in good
standing under the laws of the jurisdiction in which it is chartered or organized with full power
and authority to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus and any then applicable Permitted Free
Writing Prospectus, if any, and is duly qualified to do business and is in good standing under the
laws of each jurisdiction which requires such qualification, except in each case as would not,
singly or in the aggregate, have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course of business (a
“Material Adverse Effect”), except as set forth in or contemplated in the Prospectus and
any then applicable Permitted Free Writing Prospectus, if any (exclusive of any supplement thereto
subsequent to the Commencement Date).



     (d) All the outstanding shares of capital stock of each of the Company’s significant
subsidiaries (as defined by Rule 1-02 of Regulation S-X under the Exchange Act) (the
“Significant Subsidiaries”) have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the Prospectus and any then
applicable Permitted Free Writing Prospectus, if any, or as may be required by applicable law, all
outstanding shares of capital stock of the Significant Subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any perfected security interest or
any other security interests, claims, liens or encumbrances.



     (e) The Company’s authorized equity capitalization is as set forth in the Prospectus and any
then applicable Permitted Free Writing Prospectus, if any. The Securities conform in all material
respects to the description thereof contained in the Prospectus and any then applicable Permitted
Free Writing Prospectus, if any. The Securities being sold hereunder by the Company shall be on
the Representation Date “covered securities” (as defined under Section 18(b)(1) of the Act) or to
the extent such Securities are not “covered securities” on the Commencement Date, such Securities
shall be “covered securities” on the Representation Date.



     (f) There is no franchise, contract or other document of a character required to be described
in the Registration Statement, Prospectus and any then applicable Permitted Free Writing
Prospectus, if any, or to be filed as an exhibit thereto, which is not described or filed as
required. The statements in the Prospectus and any similar sections or information in any then
applicable Permitted Free Writing Prospectus, if any, under the headings “Description of Notes,”
“Description of Debt Securities” and “Plan of Distribution” fairly summarize the matters therein
described.



     (g) This Agreement has been, and each Purchase Agreement when executed and delivered pursuant
to this Agreement will be, duly authorized, executed and delivered by each Issuer and this
Agreement constitutes, and each Purchase Agreement to be executed and delivered pursuant to this
Agreement will constitute, a valid and binding obligation of each Issuer enforceable in accordance
with their terms.



     (h) The Company is not and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the Prospectus and any then applicable
Permitted Free Writing Prospectus, if any, will not be an “investment company” (as defined in the
Investment Company Act of 1940, as amended).



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     (i) No consent, approval, authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Securities by the Agents in
the manner contemplated herein and in the Prospectus and any then applicable Permitted Free Writing
Prospectus, if any.



     (j) Neither the issue and sale of the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result
in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws of the
Company or any of its subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant
or instrument to which the Company or any of its subsidiaries is a party or bound or to which its
or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its subsidiaries or any of its or their properties, except, in the case of
clause (ii) or (iii), as would not, singly or in the aggregate, have a Material Adverse Effect.



     (k) No holders of securities of the Company have rights to the registration of such securities
under the Registration Statement.



     (l) The consolidated historical financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration Statement, the Prospectus
and any then applicable Permitted Free Writing Prospectus, if any, present fairly in all material
respects the financial condition, results of operations and cash flows of the Company as of the
dates and for the periods indicated, comply as to form with the applicable accounting requirements
of the Act and have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as otherwise noted therein).
The selected financial data, if any, set forth in any Prospectus, and any similar sections or
information in any then applicable Permitted Free Writing Prospectus, if any, fairly present, on
the basis stated in the Prospectus, and any similar sections or information in any then applicable
Permitted Free Writing Prospectus, if any, the information included therein.



     (m) No action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries or its or their property is
pending or, to the best knowledge of the Company, threatened that (i) could reasonably be expected
to have a material adverse effect on the performance of this Agreement or the consummation of any
of the transactions contemplated hereby or (ii) could reasonably be expected to have a Material
Adverse Effect.



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     (n) Each of the Company and each of its subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted, except as would not have a
Material Adverse Effect.



     (o) Neither the Company nor any subsidiary is in violation or default of (i) any provision of
its charter or bylaws, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to
which it is a party or bound or to which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Company or such
subsidiary or any of its properties, as applicable, except, in the case of clause (ii) or (iii), as
would not, singly or in the aggregate, have a Material Adverse Effect.



     (p) To the Issuers’ knowledge, Ernst & Young LLP, who has certified certain financial
statements of the Company and its consolidated subsidiaries and delivered their report with respect
to the audited consolidated financial statements included or incorporated by reference in the
Prospectus and any then applicable Permitted Free Writing Prospectus, if any, are independent
public accountants with respect to the Company within the meaning of the Act and the applicable
published rules and regulations adopted by the Commission under the Act or by the Public Company
Accounting Oversight Board. To the Issuers’ knowledge, Ernst & Young LLP is not in violation of
the auditor independence requirements of the Sarbanes-Oxley Act of 2002 with respect to the
Company.



     (q) There are no material transfer taxes or other similar fees or charges under Federal law or
the laws of any state, or any political subdivision thereof, required to be paid in connection with
the execution and delivery of this Agreement or the issuance or sale by any Issuer of the
Securities.



     (r) The Company and its subsidiaries have filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof (except in any case in
which the failure so to file would not have a Material Adverse Effect) and have paid all taxes
required to be paid by them and any other assessment, fine or penalty levied against them, to the
extent that any of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as would not have a Material Adverse
Effect.



     (s) No labor problem or dispute with the employees of the Company or any of its subsidiaries
exists or is threatened or imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its subsidiaries’ principal suppliers, contractors or
customers, that, in either case, could have a Material Adverse Effect.



     (t) The Company and each of its subsidiaries are insured against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they are engaged; all policies
of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their
respective businesses, assets, employees, officers and directors are in full
force and effect; the Company and its subsidiaries are in compliance with the terms of such
policies and instruments in all material respects.



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     (u) Except as described in or contemplated by the Prospectus and any then applicable Permitted
Free Writing Prospectus, if any, no Restricted Subsidiary (as defined in the applicable Indenture)
of the Company (other than any Finance Subsidiary, as defined in the Supplemental Indenture) is
currently materially restricted, directly or indirectly, from paying any dividends to the Company,
from making any other distribution on such subsidiary’s capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other subsidiary of the Company, in any case,
to any extent that the Company deems necessary.



     (v) The Company and its subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, except where the failure to possess any such license,
certificate, permit or authorization would not, singly or in the aggregate, have a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such license, certificate, permit or
authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a Material Adverse Effect.



     (w) The Company and each of its subsidiaries maintain a system of “internal control over
financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by, or under the supervision of, their
respective principal executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted
accounting principles, including but not limited to, internal accounting controls, and sufficient
to provide reasonable assurance that, in all material respects, (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.



     (x) The Company has not taken, directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.



     (y) Except as would not, singly or in the aggregate, have a Material Adverse Effect, the
Company and its subsidiaries (i) are in compliance with any and all applicable federal, state and
local laws and regulations relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”),
(ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) except as set forth in the Prospectus and any then applicable
Permitted Free Writing Prospectus, if any, have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants. Except as set forth in the Prospectus, neither
the Company nor any of its subsidiaries has been named as a “potentially responsible party” under
the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.



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     (z) Each of the Company and its subsidiaries has fulfilled its obligations, if any, under the
minimum funding standards of Section 302 of the United States Employee Retirement Income Security
Act of 1974 (“ERISA”) and the regulations and published interpretations thereunder with
respect to each “plan” (as defined in Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company and its subsidiaries are eligible to participate
and each such plan is in compliance in all material respects with the presently applicable
provisions of ERISA and such regulations and published interpretations. The Company and its
subsidiaries have not incurred any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or to any such plan under Title IV
of ERISA.



     (aa) The Company and its subsidiaries own, possess, license or have other rights to use, on
reasonable terms, all material patents, patent applications, trade and service marks, trade and
service mark registrations, trade names, copyrights, licenses, inventions, trade secrets,
technology, know-how and other intellectual property (collectively, the “Intellectual
Property”) necessary for the conduct of the Company’s business as now conducted or as proposed
in the Prospectus and any then applicable Permitted Free Writing Prospectus, if any, to be
conducted.



     (bb) Except as disclosed in the Registration Statement, the Prospectus and any then applicable
Permitted Free Writing Prospectus, if any, the Company (i) does not have any material lending or
other relationship with any bank or lending affiliate of any Agent and (ii) does not intend to use
any of the proceeds from the sale of the Securities hereunder to repay any outstanding debt owed to
any affiliate of any Agent.



     (cc) (i) The Indentures have been duly authorized, executed and delivered by the Issuers and,
assuming due authorization, execution and delivery by the Trustee, each Indenture constitutes the
valid and legally binding obligation of the Issuers, enforceable against the Issuers in accordance
with its terms, and (ii) the Securities have been validly authorized for issuance and sale pursuant
to this Agreement and, when the terms of the Securities and of their issue and sale have been duly
established in accordance with the applicable Indenture, this Agreement and the applicable Purchase
Agreement, if any, and the Securities have been duly executed, authenticated, delivered and paid
for as provided in this Agreement, the applicable Indenture and the applicable Purchase Agreement,
if any, the Securities will be validly issued and outstanding, and will constitute valid and
legally binding obligations of the Company entitled to the benefits of the applicable Indenture
and enforceable against the Company in accordance with their respective terms and the terms of the applicable Indenture, except, with
respect to the applicable Indenture and the Securities, to the extent enforceability thereof may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws now or hereafter in effect relating to or affecting the enforcement of creditors’
rights generally and (B) by the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law). The Indentures and the
Securities conform and will conform in all material respects to the statements relating thereto
contained in the Prospectus and any then applicable Permitted Free Writing Prospectus, if any, and
are substantially in the form filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.



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     (dd) Immediately after any sale of Securities by the Company hereunder or under any Purchase
Agreement, the aggregate amount of Securities which shall have been issued and sold by the Company
hereunder or under any Purchase Agreement and of any debt securities of the Company (other than
such Securities) that shall have been issued and sold pursuant to the Registration Statement will
not exceed the amount of debt securities registered under the Registration Statement.



     (ee) Since the Effective Date of the Registration Statement but prior to the applicable Trade
Date, other than the Prospectus, the Company has not, directly or indirectly, made, used, prepared,
authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to
any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to
sell or solicitation of an offer to buy the Securities (each such direct or indirect communication
by the Company (other than a communication referred to in clause (i) below) a “Permitted Free
Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Act or Rule 134 under the Act or (ii) such other written communications
approved in advance by the Agents participating in the respective offering to which the written
communication applies (including any then applicable Pricing Supplement). Each such Permitted Free
Writing Prospectus complies in all material respects with the Act, has been filed in accordance
with the Act (to the extent required thereby) and, when taken together with the Prospectus filed
prior to the first use of such Permitted Free Writing Prospectus, did not, and at the
Representation Date will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in each such Permitted
Free Writing Prospectus in reliance upon and in conformity with information relating to any Agent
furnished to the Company in writing by such Agent expressly for use in any Permitted Free Writing
Prospectus.



     (ff) The Company and its subsidiaries maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-l5(e) of the Exchange Act) that is designed to ensure that
information required to be disclosed by the Company in reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time periods specified in
the Commission’s rules and forms, including controls and procedures designed to ensure that
such information is accumulated and communicated to the Company’s management as appropriate to allow
timely decisions regarding required disclosure. The Company and its subsidiaries have carried out
evaluations of the effectiveness of its disclosure controls and procedures as required by Rule l3a-15
of the Exchange Act.



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     (gg) To the knowledge of the Company, the operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with the applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any U.S. governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or U.S. governmental
agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.



     (hh) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury (“OFAC”); and the Company will not directly or indirectly
use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by the OFAC.



SECTION 2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL




     (a) Appointment. Subject to the terms and conditions stated herein, each Agent agrees
to use its commercially reasonable efforts, acting solely as agent for the Company and not as
principal, to solicit offers to purchase the Securities upon the terms and conditions set forth in
the Prospectus and any then applicable Permitted Free Writing Prospectus, if any. In connection
therewith, each Agent will use the Prospectus and any then applicable Permitted Free Writing
Prospectus, if any (as amended or supplemented from time to time), in the form most recently
furnished to such Agent by the Company, and will solicit purchases of the Securities in accordance
with the Act, the rules and regulations thereunder and the applicable securities laws or
regulations of any other applicable jurisdiction (including non-U.S. jurisdictions) in which an
Agent offers or sells any Security. Each Agent may, but shall not be obligated to, unless
otherwise agreed, purchase Securities from the Company as principal for purposes of resale, as more
fully described in Section 2(e).



     The Company expressly reserves the right to sell Securities directly to investors, provided
that such sales are made in compliance with all applicable laws, in which case the Agents shall not
receive any commission with respect to such sale.



     (b) Suspension of Solicitation. The Company reserves the right, in its sole
discretion, to suspend solicitation of offers to purchase the Securities at any time for any period
of time or indefinitely. After receipt of written notice from the Company, the Agents will
suspend, not later than the beginning of the next business day, the solicitation of offers to
purchase Securities from the Company until such time as the Company has advised the Agents that
such solicitation may be resumed.



     Upon receipt of notice from the Company as contemplated by Section 3(b), each Agent
shall suspend its solicitation of offers to purchase Securities until such time as the Company
shall have furnished such Agent with an amendment or supplement to the Registration Statement, the
Prospectus or any then applicable Permitted Free Writing Prospectus, if any, as the case may be,
contemplated by Section 3(b) and shall have advised such Agent that such solicitation may
be resumed.



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     (c) Agent’s Commission. Promptly upon the closing of the sale of any Securities sold
by the Company as a result of a solicitation made by or offer to purchase received by an Agent, the
Company agrees to pay such Agent a commission, which may take the form of a discount, which shall
be agreed by the Company and such Agent and set forth in the applicable Pricing Supplement. Except
as otherwise provided in the Prospectus and any then applicable Permitted Free Writing Prospectus,
if any, without the consent of the Company, no Agent may reallow any portion of the commission
payable pursuant to any applicable Pricing Supplement to dealers or purchasers in connection with
the offer and sale of any Securities.



     (d) Solicitation of Offers. The Agents are authorized to solicit offers to purchase
the Securities only in denominations as are specified in the Prospectus and any then applicable
Permitted Free Writing Prospectus, if any, at a purchase price as shall be specified by the
Company. Each Agent shall communicate to the Company, orally or in writing, each reasonable offer
to purchase Securities received by it as an Agent. The Company shall have the sole right to accept
offers to purchase the Securities and may reject any such offer in whole or in part. If the
Company accepts or rejects an offer, in whole or in part, the Company will promptly notify the
applicable Agent. Each Agent shall have the right, in its discretion reasonably exercised, to
reject any offer to purchase the Securities received by it, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein.



     In connection with the solicitation of offers to purchase Securities, the Agents are not
authorized to provide any written information relating to the Company to any prospective purchaser
other than the Prospectus and any then applicable permitted Free Writing Prospectus, if any.



     The purchase price, interest rate, maturity date and other terms of the Securities agreed upon
by the Company shall be set forth in a Pricing Supplement to the Prospectus to be prepared and
distributed upon each acceptance by the Company of an offer to purchase Securities. Except as may
be otherwise provided in any Pricing Supplement to the Prospectus, the Securities will be issued in
denominations of U.S. $1,000 or any amount in excess thereof which is an integral multiple of U.S.
$1,000. Each Agent acknowledges and agrees that any funds which such Agent receives in respect of
a purchase of Securities, which purchase has been solicited by such Agent, as agent of the Company,
will be received, held and disposed of by such Agent, as agent of the Company.



     No Security which the Company has agreed to sell pursuant to this Agreement shall be deemed to
have been purchased and paid for, or sold by the Company, until such Security shall have been
delivered to the purchaser thereof against payment by such purchaser.



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     The Company shall not sell or approve the solicitation of offers for the purchase of
Securities in excess of the amount which shall be authorized by the Company from time to time or in
excess of the aggregate initial offering price of Securities registered pursuant to the
Registration Statement. The Agents shall have no responsibility for maintaining records with
respect to the aggregate initial offering price of Securities sold, or of otherwise monitoring the
availability of Securities for sale, under the Registration Statement.



     Each Agent shall use its reasonable best efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the Company has been
solicited by such Agent and accepted by the Company, but such Agent shall have no liability to the
Company in the event that any such purchase is not consummated for any reason (other than a breach
by such Agent of its obligations under this Agreement). If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer has been solicited by such Agent on an
agency basis and accepted by the Company, the Company shall hold such Agent harmless against any
loss, claim or damage arising from or as a result of such default by the Company.



     The Company and the Agents agree that any Securities, the placement of which an Agent arranges
as an agent of the Company, shall be placed by such Agent in reliance on the representations,
warranties, covenants and agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.



     (e) Purchases as Principal. Unless otherwise agreed, no Agent shall have any
obligation to purchase Securities from the Company as principal, but any Agent, severally and not
jointly, may agree from time to time to purchase Securities as principal. Each sale of Securities
to any Agent as principal shall be made in accordance with the terms of this Agreement and a
Purchase Agreement, whether oral (and confirmed in writing by the Agent and the Company within 24
hours thereafter, which may be by facsimile or other electronic transmission) or in writing, which
will provide for the sale of such Securities to, and the purchase thereof by, such Agent. A
Purchase Agreement may also specify certain provisions relating to the reoffering of such
Securities by such Agent. The commitment of any Agent to purchase Securities from the Company as
principal shall be deemed to have been made on the basis of the representations and warranties of
the Company herein contained and shall be subject to the terms and conditions herein set forth.
Each Purchase Agreement shall specify the principal amount and terms of the Securities to be
purchased by an Agent, the time and date (each such time and date being referred to herein as a
“Time of Delivery”) and place of delivery of and payment for such Securities and such other
information (as applicable) as is set forth in Exhibit B hereto. The Company agrees that
if an Agent purchases Securities as principal for resale, such Agent shall receive such
compensation, in the form of a discount or otherwise, as shall be indicated in the
applicable Purchase Agreement. To the extent described in the Prospectus and any then
applicable Permitted Free Writing Prospectus, if any, the Agents may utilize a selling or dealer
group in connection with the resale of the Securities purchased. Such Purchase Agreement shall
also specify the requirements, if any, for delivery of opinions of counsel, accountants’ letters
and officers’ certificates pursuant to Section 5.



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     (f) Administrative Procedures. Administrative procedures respecting the sale of
Securities (the “Procedures”) are set forth in Exhibit A hereto and may be amended
in writing from time to time by the Agents, the Trustee and the Company. Each Agent and the
Company agree to perform the respective duties and obligations specifically provided to be
performed by each of them herein and in the Procedures. The Procedures shall apply to all
transactions contemplated hereunder including sales of Securities to any Agent as principal
pursuant to a Purchase Agreement unless otherwise set forth in such Purchase Agreement.



     (g) Delivery of Documents. The documents required to be delivered by Section
5 were delivered at the offices of Cahill Gordon & Reindel llp, 80 Pine Street, New
York, New York 10005, not later than 4:00 P.M., New York time, on or about October 6, 2004 (the
“Commencement Date”).



SECTION 3. COVENANTS OF THE COMPANY




     The Company covenants and agrees:



     (a) During any Marketing Period (as defined below), the Company will not (i) issue any
Permitted Free Writing Prospectus, (ii) file any amendment of the Registration Statement or
supplement to the Prospectus or (iii) file any Rule 462(b) Registration Statement unless the
Company has furnished to the Agents a copy for their review prior to filing and will not file any
such proposed amendment or supplement to which the Agents reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus (including any then applicable Pricing Supplement) is otherwise
required under Rule 424(b), the Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence satisfactory to the Agents of
such timely filing. The Company will promptly advise the Agents (1) when the Prospectus or any
Permitted Free Writing Prospectus, and any supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission, (2) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been filed or become effective,
(3) of any request by the Commission or its staff for any amendment of the Registration Statement,
or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for any
additional information, (4) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of any proceeding for
that purpose and (5) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any jurisdiction or the institution
or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.



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     (b) If, at any time when a prospectus relating to the Securities is required to be delivered
under the Act (a “Marketing Period”), any event occurs as a result of which the Prospectus
as then supplemented or any then applicable Permitted Free Writing Prospectus, if any, would
include any untrue statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend the Registration Statement or supplement the
Prospectus or any then applicable Permitted Free Writing Prospectus, if any, to comply with the Act
or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the
Agents of such event; (2) prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 3, an amendment or supplement which will correct such statement or
omission or effect such compliance; and (3) supply any supplemented Prospectus or any then
applicable Permitted Free Writing Prospectus, if any, to you in such quantities as you may
reasonably request. If during any Marketing Period, (i) any Agent shall own any Securities which
it has purchased from the Company as principal with the intention of reselling them and the Agents
have held such Securities for less than 90 days or for the period such Securities are required to
be held under the terms of the Purchase Agreement related to such Securities or (ii) the Company
has accepted an offer to purchase Securities but the related settlement has not occurred, the
Company shall promptly prepare and timely file with the Commission any amendment or supplement to
the Registration Statement, any Prospectus or any then applicable Permitted Free Writing
Prospectus, if any, that may, in the judgment of the Company and the Agents, be required by the
Act.



     (c) As soon as practicable, the Company will make generally available to its security holders
and to the Agents an earnings statement or statements of the Company and its subsidiaries which
will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.



     (d) The Company will furnish to the Agents and to counsel for the Agents, without charge,
copies of the Registration Statement (including exhibits thereto) and to each other Agent a copy of
the Registration Statement (without exhibits thereto) and, during any Marketing Period, as many
copies of the Prospectus and any then applicable Permitted Free Writing Prospectus, if any, and any
supplement thereto as the Agents may reasonably request. The Company will pay the expenses of
printing or other production of all documents relating to the offering.



     (e) The Company will arrange, if necessary, for the qualification of the Securities for sale
under the laws of such jurisdictions as the Agents may designate, will maintain such qualifications
in effect so long as required for the distribution of the Securities and will pay any fee of the
National Association of Securities Dealers, Inc. in connection with its review of the offering;
provided, that in no event shall the Company be obligated to do business in any
jurisdiction where it is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering or sale of the
Securities in any jurisdiction where it is not now so subject.



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     (f) The Company will not take, directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.



     (g) If required pursuant to the terms of any Purchase Agreement, between the date of a
Purchase Agreement and the date identified in such Purchase Agreement, the Company will not offer
or sell, or enter into any agreement to sell, any of its debt securities that are substantially
similar to the Securities. This paragraph (g) does not apply to borrowings under the
Company’s credit agreements and lines of credit and the private placement of securities.



     (h) To prepare, with respect to any Securities to be sold through or to the Agents pursuant to
this Agreement, and distribute a Pricing Supplement with respect to such Securities and to file
such Pricing Supplement pursuant to Rule 424(b) under the Act with the Commission.



SECTION 3A. COVENANT OF THE AGENTS




     Each Agent severally covenants with the Company not to take any action that would result in
the Company being required to file with the Commission under Rule 433(d) a Permitted Free Writing
Prospectus prepared by or on behalf of such Agent that otherwise would not be required to be filed
by the Company thereunder, but for the action of the Agent. For
avoidance of doubt, Permitted Free Writing Prospectuses that are not
required to be filed by the Company with the Commission or retained
by the Company under Rule 433 are permitted hereby.



SECTION 4. PAYMENT OF EXPENSES




     The Company will pay the following expenses:




     (i) the costs incurred by the Company arising directly from the authorization,
issuance, initial sale and delivery of the Securities and any taxes payable in connection
therewith;




     (ii) the costs incident to the preparation, printing and filing under the Act or the
Exchange Act of the Registration Statement or the Prospectus and any amendments and exhibits
thereto (including any registration fees in respect of any registration statement relating
to the Securities within the time period required by Rule 456(b)(i) under the Act);




     (iii) the reasonable fees and disbursements of the Trustee, any paying agent, any
calculation agent, any exchange rate agent and any other agents appointed by the Company,
and their respective counsel;



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     (iv) the costs and fees in connection with the listing of the Notes on any securities
exchange;




     (v) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc.;




     (vi) the reasonable fees and disbursements of counsel to the Company and counsel to the
Agents;




     (vii) the fees paid to rating agencies in connection with the rating of the Securities;




     (viii) all advertising expenses in connection with the offering of the Securities with
the prior written consent of the Company; and




     (ix) all other costs and expenses incurred by the Company and arising out of the
transactions contemplated hereunder and incident to the performance by the Company of its
obligations hereunder.



SECTION 5. CONDITIONS OF OBLIGATIONS OF AGENT




     The obligation of the Agents, as agents of the Company, under this Agreement to solicit offers
to purchase the Securities, the obligation of any person who has agreed to purchase Securities to
make payment for and take delivery of Securities, and the obligation of any Agent to purchase
Securities pursuant to any Purchase Agreement, shall be subject to the accuracy, on and as of the
Representation Date(s) applicable to the purchase of such Securities, of the representations and
warranties of the Issuers contained herein, to the accuracy of the statements of the Issuers made
in any certificates pursuant to the provisions hereof, to the performance by the Issuers of their
obligations hereunder and to the following additional conditions:



     (a) If filing of the Prospectus and any then applicable Permitted Free Writing Prospectus, if
any, or any amendment or supplement thereto, is required pursuant to Rule 424(b), the Prospectus,
and any then applicable Permitted Free Writing Prospectus, if any, and any such amendment or
supplement (including the Pricing Supplement), will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have been instituted or
threatened.



     (b) The Company has previously furnished to the Agents the opinion of Michael Touff, Senior
Vice President and General Counsel of the Company, and Joseph Fretz, Secretary and Corporate
Counsel of the Company, dated the Commencement Date and addressed to the Agents, to the effect
that:




     (i) each of the Company and its subsidiaries has been duly organized and is validly
existing in good standing under the laws of the jurisdiction in which it is chartered or
organized with full power and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the Prospectus, and is duly
qualified to do business and is in good standing under the laws of each jurisdiction which
requires such qualification, except in each case as would not, singly or in the aggregate,
have a Material Adverse Effect, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto subsequent to the Commencement Date);



-17-









 






     (ii) all the outstanding shares of capital stock of each significant subsidiary of the
Company (as defined by Rule 1-02 of Regulation S-X) (individually a “Subsidiary” and
collectively the “Subsidiaries”) have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus
or as may be required by applicable law, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interest, claim, lien or encumbrance;




     (iii) the Company’s authorized equity capitalization is as set forth in the Prospectus;




     (iv) to the knowledge of such counsel, there is no pending or threatened action, suit
or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as required;




     (v) the Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Prospectus, will
not be an “investment company” as defined in the Investment Company Act of 1940, as amended;




     (vi) neither the execution and delivery of this Agreement nor the Indentures, the issue
and sale of the Securities nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach
or violation of or imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, (x) the charter or by-laws of the
Company or any of its subsidiaries, (y) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of its subsidiaries is a party
or bound or to which its or their property is subject, or (z) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of its subsidiaries
of any court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its subsidiaries or any of its or
their properties, except, in the case of clause (y) or (z), as would not, singly or in the
aggregate, have a Material Adverse Effect; and




     (vii) no holders of securities of the Company have rights to the registration of such
securities under the Registration Statement.



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     In rendering such opinion, such counsel may rely as to matters involving the application of
laws of any jurisdiction other than the States of New York or Colorado, the Delaware General
Corporation Law or the Federal laws of the United States, to the extent he deems proper and
specified in such opinion, upon the opinion of other counsel of good standing whom he believes to
be reliable and who are satisfactory to counsel for the Agents. References to the Prospectus in
this paragraph (b) include any supplements thereto at the Commencement Date.



     (c) Opinion of Holme Roberts & Owen llp. The Agents have previously received
the opinion, addressed to the Agents and dated the Commencement Date, of Holme Roberts & Owen
llp, Denver, Colorado, special counsel to the Issuers, which was in a form reasonably
satisfactory to counsel for the Agents, to the effect that:




     (i) this Agreement and any applicable Purchase Agreement have each been duly
authorized, executed and delivered by the Issuers;




     (ii) the Indentures have been duly authorized, executed and delivered; each Indenture
has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Issuers in accordance with its terms (subject, as
to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors’ rights generally from time to time in effect);




     (iii) the statements in the Prospectus under the captions “Description of Debt
Securities,” “Plan of Distribution” and “Description of Notes” fairly summarize the matters
described therein;




     (iv) no consent, approval, authorization, filing with or order of any court or
governmental agency or body is required with respect to the Company or the Guarantors in
connection with the transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the Agents in the manner
contemplated in this Agreement and in the Prospectus;




     (v) the Registration Statement has become effective under the Act; any required filing
of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial statements and other financial
information contained therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of the Act, the Exchange
Act and the Trust Indenture Act and the respective rules thereunder;



-19-









 






     (vi) the establishment of the Securities as a series of Securities (as defined in the
Indentures) under the Indentures and the forms of the Securities have been duly authorized
by all corporate action on the part of the Company; and




     (vii) the Securities, when (A) duly authorized and executed by the Company, (B) the
terms thereof and of their issuance and sale have been duly established in accordance with
the terms of the applicable Indenture, this Agreement and the applicable Purchase Agreement,
if any, (C) authenticated and delivered by the Trustee in accordance with the terms of the
applicable Indenture and (D) issued to and paid for by the purchasers thereof in accordance
with the terms of this Agreement and the applicable Purchase Agreement, if any, will be
entitled to the benefits of the applicable Indenture and will constitute legal, valid and
binding obligations of the Company enforceable against the Company in accordance with their
terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors’ rights generally from time to time
in effect, general principles of equity (regardless of whether enforceability is considered
in a proceeding in equity or at law)).



     In addition, such counsel shall also state that it has participated in conferences with
officers and other representatives of the Company and the Guarantors (as you and your counsel have
done); that at such conferences it has made inquiries of such officers and representatives and
discussed the contents of the Registration Statement and Prospectus; that it has not itself
independently verified and, accordingly does not render any opinion upon, the accuracy,
completeness or fairness of the Registration Statement or the Prospectus. However, subject to the
foregoing, such counsel shall state that no facts have come to its attention that have caused it to
believe that, as of the effective date of the Registration Statement, the Registration Statement
contained any untrue statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or that, as of the
date of the Registration Statement or the Commencement Date, the Prospectus (or, if the opinion is
being given pursuant to Section 6(c) as a result of the Company having entered into a
Purchase Agreement, at the date of such Purchase Agreement and as of the settlement date with
respect thereto) contained or contains an untrue statement of a material fact or omits or omitted
to state a material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; provided that such
counsel may state that it expresses no view as to the financial statements, financial schedules and
other financial and statistical data included in the Registration Statement or Prospectus.



     In rendering such opinion, such counsel may rely (A) as to matters involving the application
of laws of any jurisdiction other than the States of New York or Colorado, the Delaware General
Corporation Law or the Federal laws of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of good standing



-20-









 




whom they believe to be reliable and who are satisfactory to counsel for the Agents and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (c) include any
supplements thereto at the Commencement Date. The opinion or opinions of such counsel shall
be rendered to the Agents at the request of the Company and shall so state therein.




     (d) The Agents have previously received from Cahill Gordon & Reindel llp, counsel to
the Agents, such opinion or opinions, dated the Commencement Date, and addressed to the Agents with
respect to the issuance and sale of the Securities, the Indentures, the Registration Statement, the
Prospectus and other related matters as the Agents reasonably required, and the Company has
previously furnished to such counsel such documents as they requested for the purpose of enabling
them to pass upon such matters.



     (e) The Company has previously furnished to the Agents a certificate of the Company, signed by
Paris G. Reece III, Executive Vice President and Chief Financial Officer of the Company and
Executive Vice President, Vice President, manager or officer of the general partner of each of the
Guarantors, dated the Commencement Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus
and this Agreement and that:




     (i) the representations and warranties of the Company in this Agreement are true and
correct in all material respects on and as of the Commencement Date and the Company has
complied with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Commencement Date;




     (ii) to the Company’s knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have been
instituted or threatened; and




     (iii) since the date of the most recent financial statements included in the Prospectus
(exclusive of any supplement thereto subsequent to the Commencement Date), there has been no
material adverse change in the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto subsequent to the
Commencement Date).



     (f) Ernst & Young LLP has previously furnished to the Agents letters, dated as of the
Commencement Date, in form and substance which were satisfactory to the Agents, confirming that
they are independent accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and that:




     (i) in their opinion the audited financial statements and financial statement schedules
included or incorporated in the Registration Statement and the Prospectus and audited by
them comply as to form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and regulations;



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     (ii) they have performed a review of the unaudited interim financial information of the
Company for the six-month period ended June 30, 2004 in accordance with Statement on
Auditing Standards No. 100 and that on the basis of a reading of the latest unaudited
financial statements made available by the Company and its subsidiaries; their limited
review, in accordance with standards established under Statement on Auditing Standards No.
100, of the unaudited interim financial information for the six-month period ended June 30,
2004; carrying out certain specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter; a reading of the minutes
of the meetings of the stockholders and board of directors (and committees thereof) of the
Company and its subsidiaries; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to December 31, 2003, nothing came to their attention
which caused them to believe that:




     (A) any unaudited financial statements included or incorporated in the
Registration Statement and the Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act and with the published
rules and regulations of the Commission with respect to financial statements
included or incorporated in Quarterly Reports on Form 10-Q under the Exchange Act;
and said unaudited financial statements are not in conformity with generally
accepted accounting principles applied on a basis substantially consistent with that
of the audited financial statements included or incorporated in the Registration
Statement and the Prospectus;




     (B) with respect to the period subsequent to June 30, 2004, there were any
changes, at a specified date not more than five days prior to the date of the
letter, in the long-term debt of the Company and its subsidiaries or capital stock
of the Company or decreases in the stockholders’ equity or working capital of the
Company as compared with the amounts shown on the June 30, 2004 consolidated balance
sheet included or incorporated in the Registration Statement and the Prospectus, or
for the period from June 30, 2004 to such specified date there were any decreases,
as compared with the comparable period in the preceding year, in net revenues or
income before income taxes or in total or per share amounts of net income of the
Company and its subsidiaries, except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless said explanation is
not deemed necessary by the Agents; and




     (C) the information included in the Registration Statement and Prospectus in
response to Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive Compensation) and Item
503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable
disclosure requirements of Regulation S-K; and



-22-









 






     (iii) they have performed certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical nature (which
is limited to accounting, financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the
information set forth under the captions “Summary — Selected Financial and Other Data,”
“Capitalization” and “Business” in the Prospectus, the information included or incorporated
in Items 1, 2, 6, 7, 7A, 11 and 13 of the Company’s Annual Report on Form 10-K, incorporated
in the Registration Statement and the Prospectus, and the information included in the
“Management’s Discussion and Analysis of Financial Condition and Results of Operations”
included or incorporated in the Company’s Quarterly Reports on Form 10-Q, incorporated in
the Registration Statement and the Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal interpretation.




     References to the Prospectus in this paragraph (f) include any supplement thereto at
the date of the letter.



     (g) Subsequent to the Trade Date (as defined below) or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto subsequent to the Commencement Date), there shall
not have been (i) any change or decrease specified in the letter or letters referred to in
paragraph (f) of this Section 5 or (ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of
any supplement thereto subsequent to the Commencement Date) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the Agents, so material and
adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and
the Prospectus (exclusive of any supplement thereto subsequent to the Commencement Date). For
purposes of this Agreement, “Trade Date” means the moment immediately prior to the time an investor
agrees to purchase any Securities.



     (h) Subsequent to the Trade Date and prior to the settlement date, there shall not have been
any decrease in the rating of any of the Company’s debt by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of
any intended or potential decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.



     (i) Prior to the Commencement Date, the Company shall have furnished to the Agents such
further information, certificates and documents as the Agents or counsel to the Agents may
reasonably request.



-23-









 





SECTION 6. ADDITIONAL COVENANTS OF THE COMPANY




     The Issuers covenant and agree that:



     (a) Each Trade Date and each Time of Delivery by the Company to a purchaser shall be deemed to
be an affirmation of the representations and warranties of the Company to the Agents participating
in such sale contained in this Agreement (such representations and warranties being deemed to
relate to the Registration Statement, the Prospectus and any then applicable Permitted Free Writing
Prospectus, if any, as amended or supplemented at each such time).



     (b) The Issuers agree that, during each Marketing Period, each time




     (i) the Registration Statement, the Prospectus or any applicable Permitted Free Writing
Prospectus, if any, shall be amended or supplemented (other than by (A) a Pricing
Supplement, (B) except as set forth in (ii) and (iv) below, an amendment or supplement to
the Prospectus by the filing of an incorporated document or (C) an amendment or supplement
which relates exclusively to an offering of securities other than the Securities),




     (ii) there is filed with the Commission an Annual Report on Form 10-K that is
incorporated by reference into the Prospectus,




     (iii) the Company sells Securities to an Agent as principal and the applicable Purchase
Agreement specifies the delivery of an Officers’ Certificate under this Section 6(b)
as a condition to the purchase of Securities pursuant to such Purchase Agreement or




     (iv) the Agents reasonably request following the filing of an incorporated document
(other than as specified in (ii) above),


the Issuers shall, promptly following such amendment or supplement, filing of an Annual Report on
Form 10-K or request or concurrently with any applicable Trade Date or the Time of Delivery
relating to such sale, furnish to the Agents a certificate, as of the date of such amendment,
supplement or Time of Delivery relating to such sale or filing, representing that the statements
contained in the certificate referred to in Section 5(e) which was last furnished to the
Agents are true and correct at the time of such amendment, supplement or filing, as the case may
be, as though made as of the applicable Trade Date and Time of Delivery (except that such
statements shall be deemed to relate to the Registration Statement and each Prospectus, as amended
and supplemented to such time, including any applicable Permitted Free Writing Prospectus, if any),
or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in
Section 5(e), modified as necessary to relate to the Registration Statement, and the
Prospectus as amended and supplemented to the time of delivery of such certificate, including any
applicable




-24-









 





Permitted Free Writing Prospectus, if any. If such amendment, supplement or filing was
not filed during a Marketing Period, then, as of the first day of the next succeeding Marketing
Period, the Issuers shall submit to the Agents the certificate described above.



     (c) The Issuers agree that, during each Marketing Period, each time




     (i) the Registration Statement, any Prospectus or any applicable Permitted Free Writing
Prospectus, if any, shall be amended or supplemented (other than by (A) a Pricing
Supplement, (B) except as set forth in (ii) and (iv) below, an amendment or supplement to
the Prospectus by the filing of an incorporated document or (C) an amendment or supplement
which relates solely to an offering of securities other than the Securities),




     (ii) there is filed with the Commission an Annual Report on Form 10-K that is
incorporated by reference into the Prospectus,




     (iii) the Issuers sell Securities to an Agent as principal and the applicable Purchase
Agreement specifies the delivery of a legal opinion under this Section 6(c) as a
condition to the purchase of Securities pursuant to such Purchase Agreement or




     (iv) the Agents reasonably request following the filing of an incorporated document
(other than as specified in (ii) above),


the Issuers shall, promptly following such amendment or supplement, filing by an Annual Report on
Form 10-K or request or concurrently with any applicable Trade Date or the Time of Delivery
relating to such sale, furnish to the Agents and their counsel (A) in the case of (i) through (iv)
above (other than a request relating to the filing by the Issuers of a Quarterly Report on Form
10-Q) the written opinions of an officer of the Company who is an attorney and Holme Roberts & Owen
llp, special counsel to the Issuers (or other outside counsel of the Issuers acceptable to
the Agents), each addressed to the Agents and dated the date of delivery of such opinion, in form
satisfactory to the Agents, of the same effect as the opinions referred to in Sections 5(b)
and 5(c), but modified, as necessary, to relate to the Registration Statement, and each
Prospectus as amended or supplemented to the time of delivery of such opinion, including any
applicable Permitted Free Writing Prospectus, if any; provided, however, that in
rendering their opinion as aforesaid, Holme Roberts & Owen llp may rely on an opinion,
dated as of the date of delivery of the Holme Roberts & Owen llp opinion, of its
affiliates as to the laws of any jurisdiction other than the United States of America, the State of
Colorado and the Delaware General Corporation Law and provided further,
however, that in lieu of such opinion, each such counsel may furnish the Agents with a
letter to the effect that the Agents may rely on such prior opinion to the same extent as though it
was dated the date of such letter authorizing reliance (except that statements in such prior
opinion shall be deemed to relate to the Registration Statement and each Prospectus as amended or
supplemented to the time of delivery of such letter authorizing reliance) and (B) in the case of a
request by the Agents relating to the filing by the Issuers of a Quarterly Report on Form 10-Q, the
written opinion of an officer of the Company who is an attorney, addressed to the Agents and dated
the date of delivery of such opinion, in form




-25-









 




satisfactory to the Agents, to the effect set forth
in the penultimate paragraph of Section 5(c). If such amendment, supplement or filing was
not filed during a Marketing Period, then on the first day of the next succeeding Marketing Period,
the Issuers shall furnish to the Agents and their
counsel the written opinions of an officer of the Company who is an attorney, and Holme Roberts &
Owen llp, special counsel to the Issuers, as described above.




     (d) The Issuers agree that, during each Marketing Period, each time




     (i) the Registration Statement, any Prospectus or any applicable Permitted Free Writing
Prospectus, if any, shall be amended or supplemented to include additional financial
information (other than by (A) except as set forth in (ii) and (iv) below, an amendment to
the Registration Statement or an amendment or supplement to the Prospectus by the filing of
an incorporated document or any amendment or supplement which sets forth financial
information previously incorporated by reference into the Registration Statement or
Prospectus and (B) an amendment or supplement which relates solely to an offering of
securities other than the Securities),




     (ii) there is filed with the Commission an Annual Report on Form 10-K or Quarterly
Report on Form 10-Q,




     (iii) the Issuers sell Securities to an Agent as principal and the applicable Purchase
Agreement specifies the delivery of a letter under this Section 6(d) as a condition
to the purchase of Securities pursuant to such Purchase Agreement or




     (iv) the Agents reasonably request following the filing of an incorporated document
(other than as specified in (ii) above),


the Company shall cause Ernst & Young LLP (or other independent accountants of the Company
acceptable to the Agents) to furnish to the Agents, promptly following such amendment or
supplement, filing of an Annual Report on Form 10-K or Quarterly Report on Form 10-Q, or request or
concurrently with any Trade Date or the Time of Delivery relating to such sale, a letter, addressed
jointly to the Company and the Agents and dated the date of delivery of such letter, in form and
substance reasonably satisfactory to the Agents, of the same general tenor as the letter referred
to in Section 5(f) but modified to relate to the Registration Statement, and each
Prospectus, as amended and supplemented to the date of such letter, including any applicable
Permitted Free Writing Prospectus, if any, with such changes as may be necessary to reflect changes
in the financial statements and other information derived from the accounting records of the
Company; provided, however, that if the Registration Statement or any Prospectus is
amended or supplemented solely to include financial information as of and for a fiscal quarter,
such accountants may limit the scope of such letter to the unaudited financial statements included
in such amendment or supplement. If such amendment, supplement or filing was not filed during a
Marketing Period, then on the first day of the next succeeding Marketing Period the Company shall
cause Ernst & Young LLP (or other independent accountants of the Company acceptable to the Agents)
to furnish to the Agents a letter, addressed jointly to the Company and the Agents as described
above.




-26-









 





     (e) The Issuers agree to furnish to the Agents during the term of this Agreement such relevant
documents and certificates of officers of the Company relating to the business, operations
and affairs of the Company, the Registration Statement, the Prospectus,
any amendments or supplements thereto, the Indentures, the Securities, this Agreement, the
Administrative Procedures, any applicable Pricing Supplement and the performance by the Company of
its obligations hereunder or thereunder as any Agent may from time to time reasonably request.



     (f) The parties hereto acknowledge and agree that an amendment and restatement of this
Agreement may be made at any time to provide for guarantees of the Subordinated Notes (and to make
such other changes to this Agreement and the other Transaction Documents consistent therewith), and
that such amendment and restatement shall, without further action or consent of any other party
hereto (other than the applicable guarantors of such Subordinated Notes), be effective to amend and
restate this Agreement immediately upon execution and delivery thereof by the Company and such
guarantors of the Subordinated Notes.



SECTION 7. INDEMNIFICATION AND CONTRIBUTION




     (a) The Issuers agree, jointly and severally, to indemnify and hold harmless each Agent, the
directors, officers, employees and agents of each Agent and each person who controls any Agent
within the meaning of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under
the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities (or actions in respect thereof),
arise out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Securities as originally filed
or in any amendment thereof, or in the Prospectus, any Permitted Free Writing Prospectus or any
other information provided or conveyed by the Company to the Agents prior to the Trade Date, or in
any amendment thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.



     Notwithstanding the foregoing, no Issuer will be liable in any such case (I) to the extent
that any such loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on behalf of any Agent
specifically for inclusion therein or (II) to any Agent with respect to the Prospectus to the
extent that any such loss, claim, damage or liability of such Agent results from the fact that such
Agent sold Securities to a person as to whom it shall be established in the related proceedings
that there was not sent or given, at or prior to the time the person commits to purchase the
Securities (the “Time of Sale”), a copy of the Prospectus (or of the Prospectus as then
amended or supplemented if the Company shall have furnished such Agent with such amendment or
supplement thereto prior to the Time of Sale), if such delivery was required by the



-27-









 




Act, and such loss, claim, damage or liability results from an untrue statement or omission of a material fact
contained in such Prospectus that was completely corrected in any amendment or
supplement thereto if the Company shall have furnished such Agent with such amendment or
supplement thereto prior to the Time of Sale (it being understood that no Agent shall be required
to send or give any amendment or supplement to any document incorporated by reference in the
Prospectus to any person in order to benefit from the indemnification provisions herein or
otherwise).




     This indemnity agreement will be in addition to any liability which the Issuers may otherwise
have.



     (b) Each Agent agrees, severally and not jointly, to indemnify and hold harmless each of the
Issuers, each of their respective directors, each of their respective officers who sign the
Registration Statement, and each person that controls any Issuer within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity to any Agent, but only with
reference to written information relating to such Agent furnished to the Company by or on behalf of
such Agent specifically for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which any Agent may otherwise have.
The Issuers acknowledge that, under the heading “Plan of Distribution,” the sentences related to
concessions and reallowances and the paragraph related to stabilization, syndicate covering
transactions and penalty bids in the Prospectus or any similar information contained in all
applicable Permitted Free Writing Prospectuses, if any, constitute the only information furnished
in writing by or on behalf of the Agents for inclusion in the Prospectus or any Permitted Free
Writing Prospectus, if any.



     (c) Promptly after receipt by an indemnified party under this Section 7 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party
in any action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that
such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the



-28-









 




indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.




     (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 7
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Issuers
and the Agents severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending same) (collectively, “Losses”) to which the Issuers and one or more of the
Agents may be subject in such proportion as is appropriate to reflect the relative benefits
received by the Issuers on the one hand and the Agents on the other from the offering of the
Securities; provided, however, that in no case shall any Agent (except as may be
provided in any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Agents hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Issuers and the Agents shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Issuers and of the Agents in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations. Benefits received
by the Issuers shall be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by them, and benefits received by the Agent shall be deemed to be
equal to the total underwriting discounts and commissions received by such Agent with respect to
such offering. Relative fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information provided by the Issuers on the one hand or any Agent
on the other, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Issuers and the Agents
agree that it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person that controls (within the meaning of either the
Act or the Exchange Act) an Agent and each director, officer, employee and agent of an Agent shall
have the same rights to contribution as any Agent, and each person who



-29-









 




controls any Issuer within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).




SECTION 8. STATUS OF EACH AGENT




     In soliciting offers to purchase the Securities from the Issuers pursuant to this Agreement
(other than in respect of any Purchase Agreement), each Agent is acting individually and not
jointly and as agent for the Issuers and not as principal.



SECTION 9. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS TO SURVIVE DELIVERY




     The respective agreements, representations, warranties, indemnities and other statements of
the Issuers and their officers and of the Agents set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or on behalf of any
Agent or the Issuers or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the Securities. The provisions of
Section 7 hereof shall survive the termination or cancellation of this Agreement.



SECTION 10. TERMINATION




     (a) This Agreement may be terminated for any reason with respect to any party hereto, at any
time, by any party hereto upon the giving of one day’s written notice of such termination to the
other parties hereto; provided, however, if such terminating party is an Agent,
such termination shall be effective only with respect to such terminating party. If, at the time
of a termination, an offer to purchase any of the Securities has been accepted by the Company but
the Time of Delivery to the purchaser has not occurred, the provisions of this Agreement shall
remain in effect until such Securities are delivered. The provisions of Sections 2(c),
3(b) (the last sentence only), 3(c), 4, 7, 8 and 9
shall survive any termination of this Agreement.



     (b) Notwithstanding anything in Section 10(a) to the contrary, the applicable Agent or
Agents may terminate any Purchase Agreement immediately upon notice to the Company, at any time
prior to the Time of Delivery relating thereto, if (i) there has been, since the date of such
agreement or since the respective dates as of which information is given in the Prospectus and all
applicable Permitted Free Writing Prospectuses, if any, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or business prospects of
the Company, whether or not arising in the ordinary course of business, (ii) there shall have
occurred any outbreak or escalation of hostilities involving the United States or the declaration
by the United States of a national emergency or war or the occurrence of any other calamity or
crisis or any adverse change in financial, political or economic conditions in the United States or
elsewhere, the effect of which on financial markets is such as to make it, in the sole judgment of
the applicable Agent or Agents, impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Prospectus (exclusive of any



-30-









 




supplement thereto subsequent to the Commencement Date), (iii)
trading generally on either the New York Stock Exchange or the
Pacific Stock Exchange shall have been suspended, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the SEC or any other
governmental authority, or if a banking moratorium shall have been declared either by Federal or
New York State authorities, or (iv) there shall have come to the attention of the applicable Agent
or Agents any facts that would cause them to believe that the Prospectus and all applicable
Permitted Free Writing Prospectuses, if any, at the time it was required to be delivered to a
purchaser of Securities, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances existing at the time of such delivery, not misleading.




SECTION 11. NOTICES




     Except as otherwise provided herein, all notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Agents shall be directed to them as follows:



	 	 	 
	Citigroup Global Markets Inc.

	 	Greenwich Capital Markets, Inc.
	388 Greenwich Street

	 	600 Steamboat Road
	New York, New York 10013

	 	Greenwich, Connecticut 06830
	Attention: Richard Moriarty

	 	Attention: Steve Fitzpatrick
	Tel: (212) 816-7545

	 	Tel: (203) 618-2475
	Fax: (212) 816-7917

	 	Fax: (203) 422-4764
	 
	 	 
	Banc of America Securities LLC

	 	J.P. Morgan Securities Inc.
	214 North Tryon Street

	 	270 Park Avenue, 9th Floor
	NC1-027-14-01

	 	New York, New York 10017
	Charlotte, North Carolina 28255

	 	Attention: Transaction Execution Group
	Attention: Richard D. Williams

	 	Tel: (212) 834-5710
	Tel: (704) 386-8850

	 	Fax: (212) 834-6702
	Fax: (704) 388-9982
	 	 
	 
	 	 
	BNP Paribas

	 	McDonald Investments Inc.
	787 Seventh Avenue

	 	127 Public Square, 4th Floor
	New York, New York 10019

	 	Mail Code: OH-01-27-0406
	Attention: Paul Lange

	 	Cleveland, Ohio 44114
	Tel: (212) 841-3254

	 	Attention: Joe Chinnici
	Fax: (772) 264-2604

	 	Tel: (216) 689-0281
	 

	 	Fax: (216) 689-4233
	 
	 	 
	Credit Suisse First Boston LLC

	 	Merrill Lynch, Pierce, Fenner & Smith Incorporated
	11 Madison Avenue, 5th Floor

	 	4 World Financial Center
	New York, New York 10010

	 	New York, New York 10080
	Attention: Short and

	 	Attention: Transactions Management Group
	Medium-Term Products Group

	 	Tel: (212) 449-7476
	Tel: (212) 538-0929

	 	Fax: (212) 449-2234
	Fax: (212) 743-5825
	 	 





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	Comerica Securities

	 	SunTrust Robinson Humphrey Capital Markets
	211 West Forth Street, 3rd Floor

	 	303 Peachtree Street, NE
	Mail Code: 3089

	 	23rd Floor, MC: GA-ATL-3939
	Detroit, Michigan 48226

	 	Atlanta, Georgia 30308
	Attention: Tony Caudle

	 	Attention: Betsy Brown
	Tel: (313) 222-3748

	 	Tel: (404) 532-0771
	Fax: (313) 964-5068

	 	Fax: (404) 588-7005
	 
	 	 
	Deutsche Bank Securities Inc.

	 	UBS Securities LLC
	60 Wall Street, 45th Floor

	 	677 Washington Boulevard
	New York, New York 10005

	 	Stamford, Connecticut 06901
	Attention: Rich Thaler

	 	Attention: Fixed Income Syndicate
	Tel: (212) 250-7747

	 	Tel: (203) 719-1088
	Fax: (212) 797-0085

	 	Fax: (203) 719-0495
	 
	 	 
	 

	 	Wachovia Capital Markets, LLC
	 

	 	301 South College Street
	 

	 	NC0606
	 

	 	Charlotte, North Carolina 28288
	 

	 	Attention: John Cannon
	 

	 	Tel: (704) 383-4747
	 

	 	Fax: (704) 383-8494






     Notices to the Company shall be directed to it as follows: M.D.C. Holdings, Inc., 4350 South
Monaco, Suite 500, Denver, Colorado 80237, Attention: General Counsel, Telecopy: (303) 804-7980.



SECTION 12. BINDING EFFECT; BENEFITS




     This Agreement shall be binding upon each Agent, the Company, and their respective successors.
This Agreement and the terms and provisions hereof are for the sole benefit of only those persons,
except that (a) the representations, warranties, indemnities and agreements of the Issuers
contained in this Agreement shall also be deemed to be for the benefit of the person or persons, if
any, who control any Agent within the meaning of Section 15 of the Act, and (b) the indemnity
agreement of the Agents contained in Section 7 shall be deemed to be for the benefit of
directors of the Issuers, officers of the Issuers who have signed the Registration Statement and
any person controlling the Issuers. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 12, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any provision contained
herein.



-32-









 





SECTION 13. ADDITIONAL AGENTS




     The Company shall have the right to add additional agents at any time; provided that
each new agent shall agree in writing to be bound by the terms of this Agreement.



SECTION 14. APPLICABLE LAW




     This Agreement will be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed within the State of New York.



SECTION 15. COUNTERPARTS




     This Agreement may be signed in one or more counterparts, each of which shall constitute an
original and all of which together shall constitute one and the same agreement.



SECTION 16. HEADINGS




     The section headings used herein are for convenience only and shall not affect the
construction hereof.



SECTION 17. DEFINITIONS




     The terms which follow, when used in this Agreement, shall have the meanings indicated.




     “Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.




     “Commission” shall mean the Securities and Exchange Commission.




     “Effective Date” shall mean each date and time that the Registration Statement,
any post-effective amendment or amendments thereto and any Rule 462(b) Registration
Statement became or becomes effective.




     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.




     “Permitted Free Writing Prospectus” has the meaning set forth in Section 1(ee).




     “Prospectus” shall mean the prospectus (including any related prospectus
supplement and the applicable Pricing Supplement) relating to the Securities that is first
filed pursuant to Rule 424(b) after the Commencement Date or, if no filing pursuant to Rule
424(b) is required, shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.



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     “Registration Statement” shall mean the registration statement referred to in
paragraph 1(a) above or any shelf registration statement filed by the Company after the
date hereof for the registration under the Act of the offering and sale of the
Securities, including exhibits and financial statements, as amended at the Commencement Date
(or, if not effective at the Commencement Date, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Commencement Date, shall also mean
such registration statement as so amended or such Rule 462(b) Registration Statement, as the
case may be. Such term shall include any Rule 430A Information deemed to be included
therein at the Commencement Date as provided by Rule 430A.




     “Rule 424,” “Rule 430A” and “Rule 462” refer to such rules
under the Act.




     “Rule 430A Information” shall mean information with respect to the Securities
and the offering thereof permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A.




     “Rule 462(b) Registration Statement” shall mean a registration statement and
any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the
initial registration statement.




     “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission promulgated thereunder.



SECTION 18. NO FIDUCIARY RELATIONSHIP




     The Company acknowledges and agrees that the Agents are acting solely as agents in connection
with the purchase and sale of the Company’s Securities. The Company further acknowledges that the
Agents are acting pursuant to a contractual relationship created solely by this Agreement entered
into on an arm’s length basis, and in no event do the parties intend that the Agents act or be
responsible as a fiduciary to the Company, its management, stockholders or creditors or any other
person in connection with any activity that the Agents may undertake or have undertaken in
furtherance of the purchase and sale of the Company’s Securities, either before or after the date
hereof. The Agents hereby expressly disclaim any fiduciary or similar obligations to the Company,
either in connection with the transactions contemplated by this Agreement or any matters leading up
to such transactions, and the Company hereby confirms its understanding and agreement to that
effect. The Company and the Agents agree that they are each responsible for making their own
independent judgments with respect to any such transactions and that any opinions or views
expressed by an Agent to the Company regarding such transactions, including but not limited to, any
opinions or views with respect to the price or market for the Company’s Securities, do not
constitute advice or recommendations to the Company.



[Signature Pages Follow]




-34-









 





     If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company, the Guarantors and the Agents.



	 	 	 	 	 
	 	Very truly yours,



M.D.C. HOLDINGS, INC.

 	 
	 	By:  	/s/ Paris G. Reece III
 	 
	 	 	Name:  	Paris G. Reece III 	 
	 	 	Title:  	Executive Vice President,

Chief Financial Officer and

Principal Accounting Officer 	 
	 



Amended and Restated Distribution Agreement





 









 





	 	 	 	 	 
	 	GUARANTORS:





M.D.C. LAND CORPORATION

RAH OF TEXAS, LP

RAH TEXAS HOLDINGS, LLC

RAH OF FLORIDA, INC.

RICHMOND AMERICAN CONSTRUCTION, INC.

RICHMOND AMERICAN HOMES OF ARIZONA, INC.

RICHMOND AMERICAN HOMES OF CALIFORNIA, INC.

RICHMOND AMERICAN HOMES OF COLORADO, INC.

RICHMOND AMERICAN HOMES OF DELAWARE, INC.

RICHMOND AMERICAN HOMES OF FLORIDA, LP

RICHMOND AMERICAN HOMES OF ILLINOIS, INC.

RICHMOND AMERICAN HOMES OF MARYLAND, INC.

RICHMOND AMERICAN HOMES OF NEVADA, INC.

RICHMOND AMERICAN HOMES OF NEW JERSEY, INC.

RICHMOND AMERICAN HOMES OF PENNSYLVANIA, 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:  	/s/ Paris G. Reece III
 	 
	 	 	Name:  	Paris G. Reece III 	 
	 	 	Title:  	An authorized officer or representative 	 
	 



Amended and Restated Distribution Agreement





 









 




	 	 	 	 	 
	CONFIRMED AND ACCEPTED,  
	as of the date first above written:  
	 
	 	 	 	 
	CITIGROUP GLOBAL MARKETS INC.  
	 
	 	 	 	 
	By:

	 	/s/ Brian Bednarski
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement




 









 




	 	 	 	 	 
	BANC OF AMERICA SECURITIES LLC  
	 
	 	 	 	 
	By:

	 	/s/ Lily Chang
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement




 









 




	 	 	 	 	 
	BNP PARIBAS  
	 
	 	 	 	 
	By:

	 	/s/ Jim Turner
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement




 









 




	 	 	 	 	 
	COMERICA SECURITIES  
	 
	 	 	 	 
	By:

	 	/s/ Susan Janson
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement




 









 




	 	 	 	 	 
	CREDIT SUISSE FIRST BOSTON LLC
	 
	 	 	 	 
	By:

	 	/s/ [illegible]
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement




 









 




	 	 	 	 	 
	DEUTSCHE BANK SECURITIES INC.
	 
	 	 	 	 
	By:

	 	/s/ [illegible]
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 
	 
	 	 	 	 
	By:

	 	/s/ R.Scott Flieger
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement




 









 




	 	 	 	 	 
	GREENWICH CAPITAL MARKETS, INC.
	 
	 	 	 	 
	By:

	 	/s/ Stewart Whitman
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement





 









 





	 	 	 	 	 
	J.P. MORGAN SECURITIES INC.
	 
	 	 	 	 
	By:

	 	/s/ Robert Bottamedi
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement




 









 




	 	 	 	 	 
	MCDONALD INVESTMENTS INC.
	 
	 	 	 	 
	By:

	 	/s/ Joe Chinnici III
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement





 









 





	 	 	 	 	 
	MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
	 
	 	 	 	 
	By:

	 	/s/ Brian R. Hogan, Jr.
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement




 









 





	 	 	 	 	 
	SUNTRUST ROBINSON HUMPHREY CAPITAL MARKETS
	 
	 	 	 	 
	By:

	 	/s/ Jim Stathis
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement




 









 




	 	 	 	 	 
	UBS SECURITIES LLC
	 
	 	 	 	 
	By:

	 	/s/ Christian Stewart
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 
	 
	 	 	 	 
	By:

	 	/s/ Jordan Matusow
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement




 









 




	 	 	 	 	 
	WACHOVIA CAPITAL MARKETS, LLC
	 
	 	 	 	 
	By:

	 	/s/ Jim Stenson
	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Amended and Restated Distribution Agreement