exv10w1



 





Exhibit 10.1




SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




          This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (“Amendment”), dated as
of January 24, 2008, 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 amended by the First Amendment to Second Amended and
Restated Credit Agreement dated October 24, 2007 and 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. Definitions.



     (a) The following definition is added to Article I of the Credit Agreement:




     “Unrestricted Cash” means cash and Cash Equivalents of the Borrower and
Guarantors that are free and clear of all Liens and not subject to any restrictions (other
than with respect to costs of liquidating certain Cash Equivalents prior to maturity) on the
use thereof to pay Indebtedness and other obligations of the applicable Person.



     (b) The definition of “Leverage Ratio” in Article I of the Credit Agreement is hereby amended
and restated in its entirety as follows:




     “Leverage Ratio” means (a) solely for purposes of Section 2.11, at any date,
the ratio (expressed as a percentage) of (i) Consolidated Indebtedness to (ii) the sum of
Consolidated Indebtedness and Adjusted Consolidated Tangible Net Worth, and (b) for all
other purposes, at any date, the ratio (expressed as a percentage) of (i) (A) Consolidated
Indebtedness less (B) Unrestricted Cash of the Borrower and the Guarantors in excess of
$50,000,000 but not to exceed $500,000,000 to (ii) (A) the sum of Consolidated Indebtedness
and Adjusted Consolidated Tangible Net Worth less (B) Unrestricted Cash of the Borrower and
the Guarantors in excess of $50,000,000 but not to exceed $500,000,000.



     2. 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) $1,055,020,000 plus (ii) fifty percent (50%) of
consolidated net income of Borrower and the Guarantors earned after December 31, 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 December 31, 2007, minus (iv) the lesser of (A) the aggregate
amount paid by Borrower after December 31, 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 December 31, 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.



     3. Consolidated Tangible Net Worth Floor. Section 9.3 of the Credit Agreement is
hereby amended and restated in its entirety as follows:




     9.3 Consolidated Tangible Net Worth Floor. Consolidated Tangible Net Worth
shall not be less than (i) $850,000,000, plus (ii) an amount equal to 50% of the quarterly
consolidated net income of Borrower and Guarantors earned after December 31, 2007 (excluding
any quarter in which there is a loss but applying consolidated 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 December 31, 2007. Notwithstanding the



2









 







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 the minimum Consolidated Tangible Net Worth for this covenant
to the following amount: (i) 50% of Consolidated Tangible Net Worth immediately following
the closing of such Acquisition, (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) and (iii) 50% of the
net proceeds or other consideration received by Borrower for any capital stock issued after
the closing of such Acquisition. Borrower may make the election under the preceding
sentence only if it makes the corresponding election under Section 9.1 at the same time.
Borrower’s compliance with the foregoing covenant shall be measured on a quarterly basis,
based on the financial statements delivered to Administrative Agent pursuant to Section 7.1.



     4. Compliance Certificate. The form of Compliance Certificate attached as Exhibit
F to the Credit Agreement is hereby amended to conform to the changes in Sections 9.1 and 9.3
provided for above.



     5. 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.



     6. 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.



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



     8. 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.



     9. 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 & 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.

SECOND AMENDMENT TO SECOND AMENDED AND RETATED 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.

SECOND AMENDMENT TO SECOND AMENDED AND RETATED 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.

SECOND AMENDMENT TO SECOND AMENDED AND RETATED 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.

SECOND AMENDMENT TO SECOND AMENDED AND RETATED 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.

SECOND AMENDMENT TO SECOND AMENDED AND RETATED CREDIT

AGREEMENT




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark W. Lariviere	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Mark W. Lariviere	 	 
	 	 	Title: Senior Vice President	 	 






 









 





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

SECOND AMENDMENT TO SECOND AMENDED AND RETATED 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.

SECOND AMENDMENT TO SECOND AMENDED AND RETATED CREDIT

AGREEMENT




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	WASHINGTON MUTUAL BANK, FA	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John L. Thomas	 	 
	 

	 	 	 	 	 	 
	 	 	Name: John L. Thomas	 	 
	 	 	Title: Vice President	 	 






 









 





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

SECOND AMENDMENT TO SECOND AMENDED AND RETATED 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.

SECOND AMENDMENT TO SECOND AMENDED AND RETATED CREDIT

AGREEMENT




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	COMERICA BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Adam Sheets	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Adam Sheets	 	 
	 	 	Title: Assistant Vice President	 	 






 









 





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

SECOND AMENDMENT TO SECOND AMENDED AND RETATED CREDIT

AGREEMENT




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	REGIONS BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel McClurkin	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Daniel McClurkin	 	 
	 	 	Title: Assistant Vice President	 	 






 









 





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

SECOND AMENDMENT TO SECOND AMENDED AND RETATED CREDIT

AGREEMENT




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	CALYON NEW YORK BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Samuel L. Hill	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Samuel L. Hill	 	 
	 	 	Title: Managing Director and Regional Head	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Nelson	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Robert L. Nelson	 	 
	 	 	Title: Managing Director	 	 






 









 





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

SECOND AMENDMENT TO SECOND AMENDED AND RETATED CREDIT

AGREEMENT




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Meredith H. Houseworth	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Meredith H. Houseworth	 	 
	 	 	Title: Vice President	 	 






 









 





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

SECOND AMENDMENT TO SECOND AMENDED AND RETATED CREDIT

AGREEMENT




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	MIZUHO CORPORATE BANK, LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Noel Purcell	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Noel Purcell	 	 
	 	 	Title: Authorized Signatory	 	 






 









 





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

SECOND AMENDMENT TO SECOND AMENDED AND RETATED 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.

SECOND AMENDMENT TO SECOND AMENDED AND RETATED CREDIT

AGREEMENT




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Luis Donoso	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Luis Donoso	 	 
	 	 	Title: Vice President	 	 






 









 





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

SECOND AMENDMENT TO SECOND AMENDED AND RETATED CREDIT

AGREEMENT




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	RBC CENTURA BANK, a North Carolina banking corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Maria Ziegler	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Maria Ziegler	 	 
	 	 	Title: Vice President	 	 






 









 





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

SECOND AMENDMENT TO SECOND AMENDED AND RETATED CREDIT

AGREEMENT




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	CITY NATIONAL BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Xavier Barrera	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Xavier Barrera	 	 
	 	 	Title: Vice President	 	 






 









 





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

SECOND AMENDMENT TO SECOND AMENDED AND RETATED CREDIT

AGREEMENT




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	COMPASS BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John C. Lozano	 	 
	 

	 	 	 	 	 	 
	 	 	Name: John C. Lozano	 	 
	 	 	Title: Vice President	 	 






 









 





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

SECOND AMENDMENT TO SECOND AMENDED AND RETATED CREDIT

AGREEMENT




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Brian J. Blomeke	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Brian J. Blomeke	 	 
	 	 	Title: Vice President	 	 






 









 





Exhibit A


CONSENT AND AGREEMENT OF GUARANTORS




     THIS CONSENT AND AGREEMENT OF GUARANTORS (“Consent”) is executed and delivered as of
___, 2008, 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.



WITNESSETH:




     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 Second 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]