exv10w1



 





Exhibit 10.1




FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




     This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (“Amendment”), dated as
of October 24, 2007, among M.D.C. HOLDINGS, INC., a Delaware corporation (the “Borrower”), the
Lenders that are identified on the signature pages hereto and JPMORGAN CHASE BANK, N.A., as
Administrative Agent (the “Administrative Agent”).



RECITALS




     WHEREAS, the Borrower, the Lenders identified on the signature pages hereto, certain other
Lenders and Administrative Agent are parties to that certain Second Amended and Restated Credit
Agreement dated as of March 22, 2006 (as it may be amended, renewed and restated from time to time,
the “Credit Agreement”) (all capitalized terms not defined herein shall have the meanings given
such terms in the Credit Agreement);



     WHEREAS, the Borrower and the Lenders desire to amend the Credit Agreement for the purposes
hereinafter set forth;



     NOW, THEREFORE, for good and valuable consideration, the parties hereto hereby agree as
follows:



     1. Consolidated Tangible Net Worth Test. Section 9.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:




     9.1 Consolidated Tangible Net Worth Test. Consolidated Tangible Net Worth
shall not be less than (i) $1,405,020,000 plus (ii) fifty percent (50%) of
consolidated net income of Borrower and the Guarantors earned after September 30, 2007
(excluding any quarter in which there is a loss but applying consolidated net income of
Borrower and the Guarantors thereafter first to such loss before determining fifty percent
(50%) of such amount for purposes of this calculation) plus (iii) fifty percent
(50%) of the net proceeds or other consideration received by Borrower for capital stock
issued by Borrower after September 30, 2007, minus (iv) the lesser of (A) the aggregate
amount paid by Borrower after September 30, 2007 to repurchase its common stock and (B)
$300,000,000, (the foregoing covenant, as adjusted as provided in the next succeeding
sentence, is herein referred to as the “Consolidated Tangible Net Worth Test”).
Notwithstanding the foregoing, in the event that Borrower shall at any time engage in an
Acquisition for a purchase price equaling or exceeding $100,000,000, Borrower may
irrevocably elect, by notice to the Administrative Agent given prior to the last day of the
fiscal quarter in which such Acquisition occurs, to adjust minimum Consolidated Tangible Net
Worth for the Consolidated Tangible Net Worth Test to the following amount: (i) 80% of the
Consolidated Tangible Net Worth immediately following the closing of such Acquisition, plus
(ii) an amount equal to 50% of the consolidated net income of Borrower and Guarantors earned
after the closing of such Acquisition (excluding any quarter in which there is a loss but
applying net income thereafter first to such loss before determining 50% of such amount for
purposes of this calculation), plus (iii) 50% of the net proceeds



 









 







or other consideration received by Borrower for any capital stock issued after the
closing of such Acquisition, minus (iv) the lesser of (A) the aggregate amount paid by
Borrower after the closing of such Acquisition to repurchase its common stock and (B) the
amount (but not less than zero) obtained by subtracting from $300,000,000 the aggregate
amount (if any) paid by Borrower to repurchase its common stock after September 30, 2007 and
prior to such Acquisition. Borrower may make the election under the preceding sentence only
if it makes the corresponding election under Section 9.3 at the same time. Borrower’s
compliance with the Consolidated Tangible Net Worth Test shall be measured on a quarterly
basis, based on the financial statements delivered to Administrative Agent pursuant to
Section 7.1. Borrower’s failure to satisfy the Consolidated Tangible Net Worth Test shall
not constitute an Event of Default or an Unmatured Event of Default; provided,
however, that if Borrower fails to satisfy the Consolidated Tangible Net Worth Test
at the end of any fiscal quarter, then the Term Out Period shall commence on the first day
following such fiscal quarter as provided in Section 2.22.



          The form of Compliance Certificate attached as Exhibit F to the Credit Agreement is
hereby amended to conform to the foregoing changes in the Consolidated Tangible Net Worth Test.



     2. Conditions Precedent. This Amendment shall be effective as of the date (“Amendment
Effective Date”) upon which the following conditions are satisfied:




     (a) The Administrative Agent shall have received from the Borrower and the Required Lenders a
counterpart of this Amendment signed on behalf of each such party.




     (b) The Administrative Agent shall have received from the Guarantors the Consent and Agreement
substantially in the form attached hereto as Exhibit A.




     (c) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization or
formation, existence and good standing of the Borrower, the authorization of this Amendment and any
other legal matters relating to the Borrower, the Agreement or this Amendment, all in form and
substance satisfactory to the Administrative Agent and its counsel.




     (d) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Amendment Effective Date, including reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder.



          The Administrative Agent shall notify the Borrower and the Lenders of the Amendment Effective
Date, and such notice shall be conclusive and binding.



     3. Representations and Warranties. The Borrower hereby represents and warrants that
as of the date hereof:




     (a) The representations and warranties of the Borrower in the Credit Agreement are true
and correct in all material respects.



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     (b) There exists no Event of Default or Unmatured Event of Default.



     4. Ratification. The Credit Agreement, as amended hereby, is hereby ratified and
remains in full force and effect.



     5. Counterparts. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one agreement and any of the parties hereto may execute this
Amendment by signing any such counterpart.



     6. Choice of Law. This Amendment and the other Loan Documents shall be construed in
accordance with the internal laws (but without regard to the conflict of laws provisions other than
Section 5-1401 of the New York General Obligations Law ) of the State of New York, but giving
effect to federal laws applicable to national banks.



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     IN WITNESS WHEREOF, the Borrower and the undersigned Lenders have caused this Amendment to be
duly executed as of the date first above written.



	 	 	 	 	 
	 	Borrower:



M.D.C. HOLDINGS, INC.

 	 
	 	By:  	/s/ John J. Heaney
 	 
	 	Name:  	John J. Heaney 	 
	 	Title:  	Senior Vice President and Treasurer	 
	 




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	 	Lenders:



JPMORGAN CHASE BANK, N.A.,

As Lender and Administrative Agent

 	 
	 	By:  	/s/ Vanessa Chiu
 	 
	 	Name:  	Vanessa Chiu 	 
	 	Its: 	Vice President	 
	 




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SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL

ASSOCIATION

 	 
	 	By:  	/s/ R. Scott Holtzapple
 	 
	 	Name:  	R. Scott Holtzapple 	 
	 	Title:  	Senior Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	CITICORP NORTH AMERICA, INC.

 	 
	 	By:  	/s/ R. Tucker Borden
 	 
	 	Name:  	R. Tucker Borden 	 
	 	Title:  	Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	SUNTRUST BANK

 	 
	 	By:  	/s/ W. John Wendler
 	 
	 	Name:  	W. John Wendler 	 
	 	Title:  	Senior Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND plc

 	 
	 	By:  	/s/ William McGinty
 	 
	 	Name:  	William McGinty 	 
	 	Title:  	Senior Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Sandra A. Sauer
 	 
	 	Name:  	Sandra A. Sauer 	 
	 	Title:  	Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ Stephen B. Carlson
 	 
	 	Name:  	Stephen B. Carlson 	 
	 	Title:  	Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	GUARANTY BANK

 	 
	 	By:  	/s/ Dan M. Killian
 	 
	 	Name:  	Dan M. Killian 	 
	 	Title:  	Senior Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	WASHINGTON MUTUAL BANK, FA

 	 
	 	By:  	/s/ John Thomas
 	 
	 	Name:  	John Thomas 	 
	 	Title:  	Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	BNP PARIBAS

 	 
	 	By:  	/s/ Duane Helkowski
 	 
	 	Name:  	Duane Helkowski 	 
	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                        /s/ Melissa Balley
 	 
	 	Name:  	Melissa Balley 	 
	 	Title:  	Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	CALIFORNIA BANK & TRUST

 	 
	 	By:  	/s/ Kirk K. Monroe
 	 
	 	Name:  	Kirk K. Monroe 	 
	 	Title:  	Senior Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	COMERICA BANK

 	 
	 	By:  	/s/ Adam Sheets
 	 
	 	Name:  	Adam Sheets 	 
	 	Title:  	Assistant Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	REGIONS BANK

 	 
	 	By:  	/s/ Daniel McClurkin
 	 
	 	Name:  	Daniel McClurkin 	 
	 	Title:  	Assistant Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	BANK OF THE WEST, a
California
banking corporation

 	 
	 	By:  	/s/ Jan Manista
 	 
	 	Name:  	Jan Manista 	 
	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                       /s/ Chuck Weerasooriya
 	 
	 	Name:  	Chuck Weerasooriya 	 
	 	Title:  	Senior Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	CALYON NEW YORK BRANCH

 	 
	 	By:  	/s/ Robert Nelson
 	 
	 	Name:  	Robert Nelson 	 
	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                         /s/ Brian Myers
 	 
	 	Name:  	Brian Myers 	 
	 	Title:  	Managing Director 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Jeff V. Aycock, CFA
 	 
	 	Name:  	Jeff V. Aycock, CFA 	 
	 	Title:  	Senior Banker 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD.

 	 
	 	By:  	/s/ Yasuo Imaizumi
 	 
	 	Name:  	Yasuo Imaizumi 	 
	 	Title:  	Senior Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	NATIXIS

 	 
	 	By:  	/s/ Marie-Edith Dugeny
 	 
	 	Name:  	Marie-Edith Dugeny 	 
	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                       /s/ Timothee Delpont
 	 
	 	Name:  	Timothee Delpont 	 
	 	Title:  	Associate 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Douglas G. Paul
 	 
	 	Name:  	Douglas G. Paul 	 
	 	Title:  	Senior Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	RBC CENTURA BANK, a North Carolina

banking corporation

 	 
	 	By:  	/s/ Carolynn Alexander
 	 
	 	Name:  	Carolynn Alexander 	 
	 	Title:  	Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	CITY NATIONAL BANK

 	 
	 	By:  	/s/ Xavier Barrera
 	 
	 	Name:  	Xavier Barrera 	 
	 	Title:  	Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	COMPASS BANK

 	 
	 	By:  	/s/ John C. Lozano
 	 
	 	Name:  	John C. Lozano 	 
	 	Title:  	Vice President 	 
	 




 









 





SIGNATURE PAGE TO M.D.C. HOLDINGS, INC.

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 
	 	FIFTH THIRD BANK

 	 
	 	By:  	/s/ Michael R. Zaksheske
 	 
	 	Name:  	Michael R. Zaksheske 	 
	 	Title:  	Vice President 	 
	 




 









 





Exhibit A




CONSENT AND AGREEMENT OF GUARANTORS




     THIS CONSENT AND AGREEMENT OF GUARANTORS (“Consent”) is executed and delivered as of October
___, 2007, by the undersigned (the “Guarantors”), in favor of the “Lenders” under that certain
Second Amended and Restated Credit Agreement dated March 22, 2006, among M.D.C. Holdings, Inc., the
Lenders from time to time parties thereto and JPMorgan Chase Bank, N.A., in its capacity as
Administrative Agent. Such Second Amended and Restated Credit Agreement, as it has been and may be
amended, modified or supplemented from time to time, is hereinafter referred to as the “Credit
Agreement.” Unless otherwise defined herein, capitalized terms used herein shall have the meanings
ascribed to them in the Credit Agreement.



W I T N E S S E T H:




     WHEREAS, the Guarantors have executed and delivered a Second Amended and Restated Guaranty
dated March 22, 2006 in favor of the Lenders under the Credit Agreement (the “Guaranty”); and



     WHEREAS, the Borrower, the Administrative Agent and the Required Lenders have entered into
that certain First Amendment to Second Amended and Restated Credit Agreement of even date herewith
amending the Credit Agreement (the “Amendment”); and



     WHEREAS, it is a condition to the Amendment that the Guarantors shall have executed this
Consent;



     NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Guarantors hereby consent to the Amendment and agree that the Guaranty
continues in full force and effect with respect to the undersigned Guarantors.



 









 





     IN WITNESS WHEREOF, this Consent has been duly executed by the Guarantors as of the day and
year first set forth above.



[Guarantors]