Jurisdiction of | ||||||||
Names of | Incorporation | I.R.S. Employer | ||||||
Co-Registrants | or Organization | Identification No. | ||||||
M.D.C. HOLDINGS, INC. | Delaware | 84-0622967 | ||||||
M.D.C. LAND CORPORATION | Colorado | 84-0831548 | ||||||
RAH OF FLORIDA, INC. | Colorado | 84-1590389 | ||||||
RICHMOND AMERICAN CONSTRUCTION, INC. | Delaware | 86-0540418 | ||||||
RICHMOND AMERICAN HOMES CONSTRUCTION NM, INC. | Colorado | 02-0701590 | ||||||
RICHMOND AMERICAN HOMES OF ARIZONA, INC. | Delaware | 86-0277026 | ||||||
RICHMOND AMERICAN HOMES OF COLORADO, INC. | Delaware | 84-1256155 | ||||||
RICHMOND AMERICAN HOMES OF FLORIDA, LP | Colorado | 02-0701603 | ||||||
RICHMOND AMERICAN HOMES OF IDAHO, INC. | Colorado | 02-0701597 | ||||||
RICHMOND AMERICAN HOMES OF MARYLAND, INC. | Maryland | 52-0814857 | ||||||
RICHMOND AMERICAN HOMES OF NEVADA, INC. | Colorado | 88-0227698 | ||||||
RICHMOND AMERICAN HOMES OF NEW MEXICO, INC. | Colorado | 02-0701586 | ||||||
RICHMOND AMERICAN HOMES OF OREGON, INC. | Colorado | 02-0701599 | ||||||
RICHMOND AMERICAN HOMES OF PENNSYLVANIA, INC. | Colorado | 02-0701595 | ||||||
RICHMOND AMERICAN HOMES OF TENNESSEE, INC. | Colorado | 02-0701583 | ||||||
RICHMOND AMERICAN HOMES OF TEXAS, INC. | Colorado | 02-0701587 | ||||||
RICHMOND AMERICAN HOMES OF UTAH, INC. | Colorado | 02-0574838 | ||||||
RICHMOND AMERICAN HOMES OF VIRGINIA, INC. | Virginia | 54-0570445 | ||||||
RICHMOND AMERICAN HOMES OF WASHINGTON, INC. | Colorado | 02-0701585 | ||||||
RICHMOND AMERICAN HOMES SIX, INC. | Colorado | 02-0701591 | ||||||
RICHMOND AMERICAN HOMES SEVEN, INC. | Colorado | 02-0701593 | ||||||
RICHMOND AMERICAN HOMES EIGHT, INC. | Colorado | 88-2698558 | ||||||
RICHMOND AMERICAN HOMES NINE, INC. | Colorado | 88-2722500 | ||||||
RICHMOND AMERICAN HOMES TEN, INC. | Colorado | 88-2742201 | ||||||
RICHMOND AMERICAN HOMES ELEVEN, INC. | Colorado | 88-2768165 |
Large accelerated filer ☒ | Accelerated filer ☐ | ||||
Non-accelerated filer ☐ | Smaller reporting company ☐ | ||||
Emerging growth company ☐ | |||||
● common stock | ● debt securities | ||||
● preferred stock |
● Maturity | ● Redemption terms | ||||
● Interest rate | ● Listing on a securities exchange | ||||
● Sinking fund terms | ● Amount payable at maturity | ||||
● Currency of payments | ● Guarantees by some of our subsidiaries |
Page | |||||
1 | |||||
1 | |||||
1 | |||||
1 | |||||
1 | |||||
2 | |||||
2 | |||||
2 | |||||
2 | |||||
2 |
Filing | Period | |||||||
Quarterly Reports on Form 10-Q | Quarter ended March 31, 2022 | |||||||
Annual Report on Form 10-K | Year ended December 31, 2021 | |||||||
Current Report on Form 8-K | Filed January 25, 2022, February 4, 2022, April 22, 2022, April 27, 2022, May 20, 2022 and May 20, 2022 |
● common stock | ● debt securities | ||||
● preferred stock |
Registration Fee | $ | 463,500 | * | |||||||||||
Fees and expenses of accountants | 15,000 | |||||||||||||
Fees and expenses of counsel to MDC | 20,000 | |||||||||||||
Miscellaneous | 1,500 | |||||||||||||
Total | $ | 500,000 |
Exhibit No. | Description | ||||||||||
1.1 | * | Form of Underwriting Agreement. | |||||||||
4.1 | |||||||||||
4.2 | |||||||||||
4.3 | |||||||||||
5.1 | |||||||||||
23.1 | |||||||||||
23.2 | |||||||||||
24.1 | |||||||||||
25.1 | |||||||||||
107 |
* | MDC will file any underwriting agreement that it may enter into as an exhibit to a Current Report on Form 8-K which is incorporated by reference into this registration statement. |
M.D.C. Holdings, Inc. | ||||||||
M.D.C. Land Corporation RAH of Florida, Inc. Richmond American Construction, Inc. Richmond American Homes Construction NM, Inc. Richmond American Homes of Arizona, Inc. Richmond American Homes of Colorado, Inc. Richmond American Homes of Florida, LP Richmond American Homes of Idaho, Inc. Richmond American Homes of Maryland, Inc. Richmond American Homes of Nevada, Inc. Richmond American Homes of New Mexico, Inc. Richmond American Homes of Oregon, Inc. Richmond American Homes of Pennsylvania, Inc. Richmond American Homes of Tennessee, Inc. Richmond American Homes of Texas, Inc. Richmond American Homes of Utah, Inc. Richmond American Homes of Virginia, Inc. Richmond American Homes of Washington, Inc. Richmond American Homes Six, Inc. Richmond American Homes Seven, Inc. Richmond American Homes Eight, Inc. Richmond American Homes Nine, Inc. Richmond American Homes Ten, Inc. Richmond American Homes Eleven, Inc. | ||||||||
By: | /s/ Robert N. Martin | |||||||
Robert N. Martin | ||||||||
Authorized Officer |
Principal Executive Officer: * ![]() Larry A. Mizel, Executive Chairman President and Chief Executive Officer: * ![]() David D. Mandarich, Director, President and Chief Executive Officer Principal Financial and Accounting Officer: /s/ Robert N. Martin ![]() Robert N. Martin, Senior Vice President, Chief Financial Officer and Principal Accounting Officer Other Directors: * ![]() Raymond T. Baker * ![]() Michael A. Berman * ![]() David E. Blackford * ![]() Herbert T. Buchwald * ![]() Courtney L. Mizel * ![]() Paris G. Reece III * ![]() David Siegel * ![]() Janice Sinden |
RAH of Florida, Inc. Richmond American Construction, Inc. Richmond American Construction NM, Inc. Richmond American Homes of Arizona, Inc. Richmond American Homes of Colorado, Inc. Richmond American Homes of Idaho, Inc. Richmond American Homes of Maryland, Inc. Richmond American Homes of Nevada, Inc. Richmond American Homes of New Mexico, Inc. Richmond American Homes of Oregon, Inc. Richmond American Homes of Tennessee, Inc. Richmond American Homes of Texas, Inc. Richmond American Homes of Utah, Inc. Richmond American Homes of Virginia, Inc. Richmond American Homes of Washington, Inc. Principal Executive, Financial and Accounting Officer: /s/ Robert N. Martin ![]() Robert N. Martin, Senior Vice President, Director M.D.C. Land Corporation Richmond American Homes of Pennsylvania, Inc. Richmond American Homes Six, Inc. Richmond American Homes Seven, Inc. Richmond American Homes Eight, Inc. Richmond American Homes Nine, Inc. Richmond American Homes Ten, Inc. Richmond American Homes Eleven, Inc. Principal Executive, Financial and Accounting Officer: /s/ Robert N. Martin ![]() Robert N. Martin, President, Director Richmond American Homes of Florida, LP By: RAH OF FLORIDA, INC. its General Partner Principal Executive, Financial and Accounting Officer: /s/ Robert N. Martin ![]() Robert N. Martin, Senior Vice President, Director |
ARTICLE ONE Definitions and Incorporation by Reference | 1 | |||||||
Section 1.01. | Definitions | 1 | ||||||
Section 1.02. | Other Definitions | 5 | ||||||
Section 1.03. | Incorporation by Reference of Trust Indenture Act | 6 | ||||||
Section 1.04. | Rules of Construction | 6 | ||||||
ARTICLE TWO The Securities | 7 | |||||||
Section 2.01. | Form and Dating | 7 | ||||||
Section 2.02. | Execution and Authentication | 8 | ||||||
Section 2.03. | Registrar and Paying Agent | 8 | ||||||
Section 2.04. | Paying Agent to Hold Money in Trust | 9 | ||||||
Section 2.05. | Securityholder Lists | 9 | ||||||
Section 2.06. | Transfer and Exchange | 9 | ||||||
Section 2.07. | Replacement Securities | 10 | ||||||
Section 2.08. | Outstanding Securities | 10 | ||||||
Section 2.09. | Temporary Securities | 10 | ||||||
Section 2.10. | Cancellation | 11 | ||||||
Section 2.11. | Defaulted Interest | 11 | ||||||
Section 2.12. | Treasury Securities | 11 | ||||||
Section 2.13. | CUSIP Numbers | 11 | ||||||
Section 2.14. | Deposit of Moneys | 11 | ||||||
Section 2.15. | Book-Entry Provisions for Global Security | 12 | ||||||
ARTICLE THREE Redemption | 13 | |||||||
Section 3.01. | Notices to Trustee | 13 | ||||||
Section 3.02. | Selection of Securities to be Redeemed | 13 | ||||||
Section 3.03. | Notice of Redemption | 13 | ||||||
Section 3.04. | Effect of Notice of Redemption | 14 | ||||||
Section 3.05. | Deposit of Redemption Price | 14 | ||||||
Section 3.06. | Securities Redeemed in Part | 14 | ||||||
ARTICLE FOUR Covenants | 15 | |||||||
Section 4.01. | Payment of Securities | 15 | ||||||
Section 4.02. | Maintenance of Office or Agency | 15 | ||||||
Section 4.03. | Compliance Certificate | 15 | ||||||
Section 4.04. | Payment of Taxes; Maintenance of Corporate Existence; Maintenance of Properties | 15 | ||||||
ARTICLE FIVE Successor Corporation | 16 | |||||||
Section 5.01. | When Company May Merge, etc. | 16 | ||||||
ARTICLE SIX Defaults and Remedies | 17 | |||||||
Section 6.01. | Events of Default | 17 | ||||||
Section 6.02. | Acceleration | 18 | ||||||
Section 6.03. | Other Remedies | 19 | ||||||
Section 6.04. | Waiver of Existing Defaults | 19 |
Section 6.05. | Control by Majority | 19 | ||||||
Section 6.06. | Limitation on Suits | 20 | ||||||
Section 6.07. | Rights of Holders to Receive Payment | 20 | ||||||
Section 6.08. | Collection Suit by Trustee | 20 | ||||||
Section 6.09. | Trustee May File Proofs of Claim | 20 | ||||||
Section 6.10. | Priorities | 21 | ||||||
Section 6.11. | Undertaking for Costs | 21 | ||||||
ARTICLE SEVEN Trustee | 21 | |||||||
Section 7.01. | Duties of Trustee | 21 | ||||||
Section 7.02. | Rights of Trustee | 22 | ||||||
Section 7.03. | Individual Rights of Trustee | 23 | ||||||
Section 7.04. | Trustee’s Disclaimer | 23 | ||||||
Section 7.05. | Notice of Defaults | 24 | ||||||
Section 7.06. | Reports by Trustee to Holders | 24 | ||||||
Section 7.07. | Compensation and Indemnity | 24 | ||||||
Section 7.08. | Replacement of Trustee | 25 | ||||||
Section 7.09. | Successor Trustee by Merger, etc. | 25 | ||||||
Section 7.10. | Eligibility; Disqualification | 25 | ||||||
Section 7.11. | Preferential Collection of Claims Against Company | 26 | ||||||
ARTICLE EIGHT Discharge of Indenture | 26 | |||||||
Section 8.01. | Defeasance upon Deposit of Moneys or U.S. Government Obligations | 26 | ||||||
Section 8.02. | Survival of the Company’s Obligations | 29 | ||||||
Section 8.03. | Application of Trust Money | 29 | ||||||
Section 8.04. | Repayment to the Company | 29 | ||||||
Section 8.05. | Reinstatement | 29 | ||||||
ARTICLE NINE Amendments, Supplements and Waivers | 30 | |||||||
Section 9.01. | Without Consent of Holders | 30 | ||||||
Section 9.02. | With Consent of Holders | 30 | ||||||
Section 9.03. | Compliance with Trust Indenture Act | 31 | ||||||
Section 9.04. | Revocation and Effect of Consents | 31 | ||||||
Section 9.05. | Notation on or Exchange of Securities | 32 | ||||||
Section 9.06. | Trustee to Sign Amendments, etc. | 32 | ||||||
ARTICLE TEN Miscellaneous | 32 | |||||||
Section 10.01. | Trust Indenture Act Controls | 32 | ||||||
Section 10.02. | Notices | 33 | ||||||
Section 10.03. | Communications by Holders with Other Holders | 33 | ||||||
Section 10.04. | Certificate and Opinion as to Conditions Precedent | 33 | ||||||
Section 10.05. | Statements Required in Certificate or Opinion | 34 | ||||||
Section 10.06. | Rules by Trustee and Agents | 34 | ||||||
Section 10.07. | Legal Holidays | 34 | ||||||
Section 10.08. | Governing Law | 34 | ||||||
Section 10.09. | No Adverse Interpretation of Other Agreements | 35 | ||||||
Section 10.10. | No Recourse Against Others | 35 |
Section 10.11. | Successors and Assigns | 35 | ||||||
Section 10.12. | Duplicate Originals | 35 | ||||||
Section 10.13. | Severability | 35 |
TIA Section | Indenture Section | ||||
310(a)(1) | 7.10 | ||||
(a)(2) | 7.10 | ||||
(a)(3) | N.A. | ||||
(a)(4) | N.A. | ||||
(b) | 7.08; 7.10; 10.02 | ||||
311(a) | 7.11 | ||||
(b) | 7.11 | ||||
(c) | N.A. | ||||
312(a) | 2.05 | ||||
(b) | 10.03 | ||||
(c) | 10.03 | ||||
313(a) | 7.06 | ||||
(b)(1) | N.A. | ||||
(b)(2) | 7.06 | ||||
(c) | 10.02 | ||||
(d) | 7.06 | ||||
314(a) | 7.06; 10.02 | ||||
(b) | N.A. | ||||
(c)(1) | 10.04 | ||||
(c)(2) | 10.04 | ||||
(c)(3) | N.A. | ||||
(d) | N.A. | ||||
(e) | 10.05 | ||||
(f) | N.A. | ||||
315(a) | 7.01(b) | ||||
(b) | 7.05; 10.02 | ||||
(c) | 7.01(a) | ||||
(d) | 7.01(c) | ||||
(e) | 6.11 | ||||
316(a) (last sentence) | 2.12 | ||||
(a)(1)(A) | 6.05 | ||||
(a)(1)(B) | 6.04 | ||||
(a)(2) | N.A. | ||||
(b) | 6.07 | ||||
(c) | 9.04 | ||||
317(a)(1) | 6.08 | ||||
(a)(2) | 6.09 | ||||
(b) | 2.04 | ||||
318(a) | 10.01 |
Term | Defined in Section | ||||
“Agent Members” | 2.15 | ||||
“Business Day” | 10.07 | ||||
“Custodian | 6.01 | ||||
“Depositary” | 2.15 | ||||
“Event of Default” | 6.01 | ||||
“Legal Holiday” | 10.07 | ||||
“Paying Agent” | 2.03 | ||||
“Registrar” | 2.03 |
(1) | the title of the Series; |
(2) | the aggregate principal amount (or any limit on the aggregate principal amount) of the Series and, if any Securities of a Series are to be issued at a discount from their face amount, the method of computing the accretion of such discount; |
(3) | the interest rate or method of calculation of the interest rate; |
(4) | the date from which interest will accrue; |
(5) | the record dates for interest payable on Securities of the Series; |
(6) | the dates when, places where and manner in which principal and interest are payable; |
(7) | the Registrar and Paying Agent; |
(8) | the terms of any mandatory (including any sinking fund requirements) or optional redemption by the Company; |
(9) | the terms of any redemption at the option of Holders; |
(10) | the denominations in which Securities are issuable; |
(11) | whether Securities will be issued in registered or bearer form and the terms of any such forms of Securities; |
(12) | whether any Securities will be represented by a global Security and the terms of any such global Security; |
(13) | if payments of principal or interest may be made in a currency other than that in which Securities are denominated, the manner for determining such payments; |
(14) | provisions for electronic issuance of Securities or issuance of Securities in uncertificated form; |
(15) | any Events of Default, covenants and/or defined terms in addition to or in lieu of those set forth in this Indenture; |
(16) | whether and upon what terms Securities may be defeased if different from the provisions set forth in this Indenture; |
(17) | the form of the Securities, which, unless the Authorizing Resolution or supplemental indenture otherwise provides, shall be in the form of Exhibit A; |
(18) | any terms that may be required by or advisable under applicable law; |
(19) | the percentage of the principal amount of the Securities which is payable if the maturity of the Securities is accelerated in the case of Securities issued at a discount from their face amount; and |
(20) | any other terms in addition to or different from those contained in this Indenture. |
(1) | the redemption date; |
(2) | the redemption price; |
(3) | the name and address of the Paying Agent; |
(4) | that Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price; |
(5) | that interest on Securities called for redemption ceases to accrue on and after the redemption date; and |
(6) | that the Securities are being redeemed pursuant to the mandatory redemption or the optional redemption provisions, as applicable. |
(a) | cause to be paid and discharged all lawful taxes, assessments and governmental charges or levies imposed upon the Company and its Restricted Subsidiaries or upon the income or profits of the Company and its Restricted Subsidiaries or upon property or any part thereof belonging to the Company and its Restricted Subsidiaries before the same shall be in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such property or any part thereof; provided, however, that the Company shall not be required to cause to be paid or discharged any such tax, assessment, charge, levy or claim so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings and the nonpayment thereof does not, in the judgment of the Company, materially adversely affect the ability of the Company and the Restricted Subsidiaries to pay all obligations under this Indenture when due; and provided further, that the Company shall not be required to cause to be paid or discharged any such tax, assessment, charge, levy or claim if, in the judgment of the Company, such payment shall not be advantageous to the Company in the conduct of its business and if the failure so to pay or discharge does not, in its judgment, materially adversely affect the ability of the Company and the Restricted Subsidiaries to pay all obligations under this Indenture when due; |
(b) | cause to be done all things necessary to preserve and keep in full force and effect the corporate existence of the Company and each of its Restricted Subsidiaries; provided, however, that nothing in this subsection (b) shall prevent a consolidation or merger of the Company or any Restricted Subsidiary not prohibited by the provisions of Article Five or any other provision or the Authorizing Resolution or supplemental indenture pertaining to a Series, and the Company need not maintain the corporate existence of an immaterial Restricted Subsidiary ; and |
(c) | at all times keep, maintain and preserve the property of the Company and the Restricted Subsidiaries in good repair, working order and condition (reasonable wear and tear excepted) and from time to time make all needful and proper repairs, renewals, replacements, betterments and improvements thereto, so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this subsection (c) shall prevent the Company from discontinuing the operation and maintenance of any such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business and not disadvantageous in any material respect to the ability of the Company and the Restricted Subsidiaries to pay all obligations under this Indenture when due. |
(1) | the Holder gives to the Trustee written notice of a continuing Event of Default on the Series; |
(2) | the Holders of at least a majority in principal amount of the outstanding Securities of the Series make a written request to the Trustee to pursue the remedy; |
(3) | such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense; |
(4) | the Trustee does not comply with the request within 90 days after receipt of the request and the offer of indemnity; and |
(5) | no written request inconsistent with such written request shall have been given to the Trustee pursuant to this Section 6.06. |
First: | to the Trustee for amounts due under Section 7.07; |
Second: | to Securityholders of the Series for amounts due and unpaid on the Series for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Series for principal and interest, respectively; and |
Third: | to the Company as its interests may appear. |
(1) | the Trustee fails to comply with Section 7.10 after written request by the Company or any bona fide Securityholder who has been a Securityholder for at least six months; |
(2) | the Trustee is adjudged a bankrupt or an insolvent; |
(3) | a receiver or other public officer takes charge of the Trustee or its property; or |
(4) | the Trustee becomes incapable of acting. |
(1) | The Company shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, money in U.S. dollars or U.S. government obligations or a combination thereof in such amounts and at such times as are sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of and interest on the outstanding Securities of such Series to maturity or redemption; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such U.S. government obligations to said payments with respect to the Securities of such Series to maturity or redemption; |
(2) | No Default or Event of Default shall have occurred and be continuing on the date of such deposit; |
(3) | Such deposit will not result in a Default under this Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or any of their property is bound; |
(4) | (i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date pertaining to such Series, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that, in the case of clauses (i) and (ii), Holders of the Securities of such Series will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; |
(5) | The Company shall have delivered to the Trustee an Officers’ Certificate, stating that the deposit under clause (1) was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; |
(6) | The Company shall have delivered to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect that, (A) the trust funds will not be subject to the rights of Holders of Indebtedness of the Company other than the Securities of such Series and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of Securities of such Series is an insider of the Company, after the 91st day following the deposit, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors’ rights generally; and |
(7) | The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 8.01 have been complied with. |
(1) | All Securities of such Series theretofore authenticated and delivered (other than Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation or all such Securities not theretofore delivered to the Trustee for cancellation have become due and payable and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for that purpose an amount of money sufficient to pay and discharge the entire Indebtedness on the Securities not theretofore delivered to the Trustee for cancellation, for principal of and interest; |
(2) | The Company has paid or caused to be paid all other sums payable hereunder by the Company; |
(3) | The Company has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Securities at maturity or redemption, as the case may be; and |
(4) | The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, stating that all conditions precedent specified herein relating to the satisfaction and discharge of this Indenture have been complied with. |
(1) | to cure any ambiguity, omission, defect or inconsistency; |
(2) | to comply with Article Five; |
(3) | to provide that specific provisions of this Indenture shall not apply to a Series not previously issued; |
(4) | to create a Series and establish its terms; |
(5) | to provide for uncertificated Securities in addition to or in place of certificated Securities; and |
(6) | to make any other change that does not adversely affect the rights of Securityholders. |
(1) | reduce the amount of Securities of such Series whose Holders must consent to an amendment, supplement or waiver; |
(2) | reduce the rate of or change the time for payment of interest, including defaulted interest, on any Security; |
(3) | reduce the principal of or change the fixed maturity of any Security or alter the provisions (including related definitions) with respect to redemption of Securities pursuant to Article Three hereof or with respect to any obligations on the part of the Company to offer to purchase or to redeem Securities of a Series pursuant to the Authorizing Resolution or supplemental indenture pertaining to such Series; |
(4) | modify the ranking or priority of the Securities of any Series; |
(5) | make any change in Sections 6.04, 6.07 or this Section 9.02; |
(6) | waive a continuing Default or Event of Default in the payment of the principal of or interest on any Security; or |
(7) | make any Security payable at a place or in money other than that stated in the Security, or impair the right of any Securityholder to bring suit as permitted by Section 6.07. |
M.D.C. Holdings, Inc. 4350 South Monaco Street Suite 500 Denver, CO 80237 Fax No.: (303) 793-2760 Attention: Chief Financial Officer | |||||||||||
Fax No.: | |||||||||||
Attention: |
(1) | an Officers’ Certificate (which shall include the statements set forth in Section 10.05) stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and |
(2) | an Opinion of Counsel (which shall include the statements set forth in Section 10.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants, compliance with which constitutes a condition precedent, if any, provided for in this Indenture relating to the proposed action or inaction, have been complied with and that any such section does not conflict with the terms of the Indenture. |
(1) | a statement that the person making such certificate or opinion has read such covenant or condition; |
(2) | a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
(3) | a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
(4) | a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. |
Dated: _____________________, 20__ | M.D.C. HOLDINGS, INC. | ||||
By: | |||||
Name: | |||||
Title: | |||||
Dated: _____________________, 20__ | ______________________, as Trustee | ||||
By: | |||||
Name: | |||||
Title: | |||||
(SEAL) |
No. | CUSIP No.: _____________ |
M.D.C. HOLDINGS, INC. | |||||||||||
[Seal] | |||||||||||
By: | |||||||||||
Title: | |||||||||||
By: | |||||||||||
Title: |
Percentage | ||||||||
Date: | Your signature: | ||||
(Sign exactly as your name appears on the other side of this Security) | |||||
Signature Guarantee: |
(1) | The word “Senior” in the Senior Debt Indenture is changed to the words “Senior Subordinated” in the Senior Subordinated Debt Indenture; and |
(2) | Article 11 and the reference to Article 11 in the Table of Contents in the Senior Subordinated Debt Indenture and paragraph 16 of the form of Senior Subordinated Debenture are not present in the form of Senior Debt Indenture and the form of Senior Debenture; and |
ARTICLE ONE Definitions and Incorporation by Reference | 1 | |||||||
Section 1.01. | Definitions | 1 | ||||||
Section 1.02. | Other Definitions | 5 | ||||||
Section 1.03. | Incorporation by Reference of Trust Indenture Act | 6 | ||||||
Section 1.04. | Rules of Construction | 6 | ||||||
ARTICLE TWO The Securities | 7 | |||||||
Section 2.01. | Form and Dating | 7 | ||||||
Section 2.02. | Execution and Authentication | 8 | ||||||
Section 2.03. | Registrar and Paying Agent | 8 | ||||||
Section 2.04. | Paying Agent to Hold Money in Trust | 9 | ||||||
Section 2.05. | Securityholder Lists | 9 | ||||||
Section 2.06. | Transfer and Exchange | 9 | ||||||
Section 2.07. | Replacement Securities | 10 | ||||||
Section 2.08. | Outstanding Securities | 10 | ||||||
Section 2.09. | Temporary Securities | 10 | ||||||
Section 2.10. | Cancellation | 11 | ||||||
Section 2.11. | Defaulted Interest | 11 | ||||||
Section 2.12. | Treasury Securities | 11 | ||||||
Section 2.13. | CUSIP Numbers | 11 | ||||||
Section 2.14. | Deposit of Moneys | 11 | ||||||
Section 2.15. | Book-Entry Provisions for Global Security | 12 | ||||||
ARTICLE THREE Redemption | 13 | |||||||
Section 3.01. | Notices to Trustee | 13 | ||||||
Section 3.02. | Selection of Securities to be Redeemed | 13 | ||||||
Section 3.03. | Notice of Redemption | 13 | ||||||
Section 3.04. | Effect of Notice of Redemption | 14 | ||||||
Section 3.05. | Deposit of Redemption Price | 14 | ||||||
Section 3.06. | Securities Redeemed in Part | 14 | ||||||
ARTICLE FOUR Covenants | 15 | |||||||
Section 4.01. | Payment of Securities | 15 | ||||||
Section 4.02. | Maintenance of Office or Agency | 15 | ||||||
Section 4.03. | Compliance Certificate | 15 | ||||||
Section 4.04. | Payment of Taxes; Maintenance of Corporate Existence; Maintenance of Properties | 15 | ||||||
ARTICLE FIVE Successor Corporation | 16 | |||||||
Section 5.01. | When Company May Merge, etc. | 16 | ||||||
ARTICLE SIX Defaults and Remedies | 17 | |||||||
Section 6.01. | Events of Default | 17 | ||||||
Section 6.02. | Acceleration | 18 | ||||||
Section 6.03. | Other Remedies | 19 | ||||||
Section 6.04. | Waiver of Existing Defaults | 19 |
Section 6.05. | Control by Majority | 19 | ||||||
Section 6.06. | Limitation on Suits | 20 | ||||||
Section 6.07. | Rights of Holders to Receive Payment | 20 | ||||||
Section 6.08. | Collection Suit by Trustee | 20 | ||||||
Section 6.09. | Trustee May File Proofs of Claim | 20 | ||||||
Section 6.10. | Priorities | 21 | ||||||
Section 6.11. | Undertaking for Costs | 21 | ||||||
ARTICLE SEVEN Trustee | 21 | |||||||
Section 7.01. | Duties of Trustee | 21 | ||||||
Section 7.02. | Rights of Trustee | 22 | ||||||
Section 7.03. | Individual Rights of Trustee | 23 | ||||||
Section 7.04. | Trustee’s Disclaimer | 23 | ||||||
Section 7.05. | Notice of Defaults | 24 | ||||||
Section 7.06. | Reports by Trustee to Holders | 24 | ||||||
Section 7.07. | Compensation and Indemnity | 24 | ||||||
Section 7.08. | Replacement of Trustee | 25 | ||||||
Section 7.09. | Successor Trustee by Merger, etc. | 25 | ||||||
Section 7.10. | Eligibility; Disqualification | 25 | ||||||
Section 7.11. | Preferential Collection of Claims Against Company | 26 | ||||||
ARTICLE EIGHT Discharge of Indenture | 26 | |||||||
Section 8.01. | Defeasance upon Deposit of Moneys or U.S. Government Obligations | 26 | ||||||
Section 8.02. | Survival of the Company’s Obligations | 29 | ||||||
Section 8.03. | Application of Trust Money | 29 | ||||||
Section 8.04. | Repayment to the Company | 29 | ||||||
Section 8.05. | Reinstatement | 29 | ||||||
ARTICLE NINE Amendments, Supplements and Waivers | 30 | |||||||
Section 9.01. | Without Consent of Holders | 30 | ||||||
Section 9.02. | With Consent of Holders | 30 | ||||||
Section 9.03. | Compliance with Trust Indenture Act | 31 | ||||||
Section 9.04. | Revocation and Effect of Consents | 31 | ||||||
Section 9.05. | Notation on or Exchange of Securities | 32 | ||||||
Section 9.06. | Trustee to Sign Amendments, etc. | 32 | ||||||
ARTICLE TEN Miscellaneous | 33 | |||||||
Section 10.01. | Trust Indenture Act Controls | 33 | ||||||
Section 10.02. | Notices | 33 | ||||||
Section 10.03. | Communications by Holders with Other Holders | 34 | ||||||
Section 10.04. | Certificate and Opinion as to Conditions Precedent | 34 | ||||||
Section 10.05. | Statements Required in Certificate or Opinion | 34 | ||||||
Section 10.06. | Rules by Trustee and Agents | 34 | ||||||
Section 10.07. | Legal Holidays | 35 | ||||||
Section 10.08. | Governing Law | 35 | ||||||
Section 10.09. | No Adverse Interpretation of Other Agreements | 35 | ||||||
Section 10.10. | No Recourse Against Others | 35 |
Section 10.11. | Successors and Assigns | 35 | ||||||
Section 10.12. | Duplicate Originals | 35 | ||||||
Section 10.13. | Severability | 35 | ||||||
ARTICLE ELEVEN Subordination | 36 | |||||||
Section 11.01. | Agreement to Subordinate | 36 | ||||||
Section 11.02. | Certain Definitions | 36 | ||||||
Section 11.03. | Liquidation; Dissolution; Bankruptcy | 36 | ||||||
Section 11.04. | Default on Senior Indebtedness | 37 | ||||||
Section 11.05. | Acceleration of Securities | 37 | ||||||
Section 11.06. | When Distributions Must Be Paid Over | 37 | ||||||
Section 11.07. | Notice by the Company | 37 | ||||||
Section 11.08. | Subrogation | 38 | ||||||
Section 11.09. | Relative Rights | 38 | ||||||
Section 11.10. | Subordination May Not Be Impaired by the Company | 38 | ||||||
Section 11.11. | Distribution or Notice to the Representative | 38 | ||||||
Section 11.12. | Rights of the Trustee and Paying Agent | 39 | ||||||
Section 11.13. | No Fiduciary Duty to Holders of Senior Indebtedness | 40 |
TIA Section | Indenture Section | ||||
310(a)(1) | 7.10 | ||||
(a)(2) | 7.10 | ||||
(a)(3) | N.A. | ||||
(a)(4) | N.A. | ||||
(b) | 7.08; 7.10; 10.02 | ||||
311(a) | 7.11 | ||||
(b) | 7.11 | ||||
(c) | N.A. | ||||
312(a) | 2.05 | ||||
(b) | 10.03 | ||||
(c) | 10.03 | ||||
313(a) | 7.06 | ||||
(b)(1) | N.A. | ||||
(b)(2) | 7.06 | ||||
(c) | 10.02 | ||||
(d) | 7.06 | ||||
314(a) | 7.06; 10.02 | ||||
(b) | N.A. | ||||
(c)(1) | 10.04 | ||||
(c)(2) | 10.04 | ||||
(c)(3) | N.A. | ||||
(d) | N.A. | ||||
(e) | 10.05 | ||||
(f) | N.A. | ||||
315(a) | 7.01(b) | ||||
(b) | 7.05; 10.02 | ||||
(c) | 7.01(a) | ||||
(d) | 7.01(c) | ||||
(e) | 6.11 | ||||
316(a) (last sentence) | 2.12 | ||||
(a)(1)(A) | 6.05 | ||||
(a)(1)(B) | 6.04 | ||||
(a)(2) | N.A. | ||||
(b) | 6.07 | ||||
(c) | 9.04 | ||||
317(a)(1) | 6.08 | ||||
(a)(2) | 6.09 | ||||
(b) | 2.04 | ||||
318(a) | 10.01 |
Term | Defined in Section | ||||
“Agent Members” | 2.15 | ||||
“Business Day” | 10.07 | ||||
“Custodian | 6.01 | ||||
“Depositary” | 2.15 | ||||
“Event of Default” | 6.01 | ||||
“Legal Holiday” | 10.07 | ||||
“Paying Agent” | 2.03 | ||||
“Registrar” | 2.03 | ||||
“Senior Indebtedness” | 11.02 | ||||
“Representative” | 11.02 |
(1) | the title of the Series; |
(2) | the aggregate principal amount (or any limit on the aggregate principal amount) of the Series and, if any Securities of a Series are to be issued at a discount from their face amount, the method of computing the accretion of such discount; |
(3) | the interest rate or method of calculation of the interest rate; |
(4) | the date from which interest will accrue; |
(5) | the record dates for interest payable on Securities of the Series; |
(6) | the dates when, places where and manner in which principal and interest are payable; |
(7) | the Registrar and Paying Agent; |
(8) | the terms of any mandatory (including any sinking fund requirements) or optional redemption by the Company; |
(9) | the terms of any redemption at the option of Holders; |
(10) | the denominations in which Securities are issuable; |
(11) | whether Securities will be issued in registered or bearer form and the terms of any such forms of Securities; |
(12) | whether any Securities will be represented by a global Security and the terms of any such global Security; |
(13) | if payments of principal or interest may be made in a currency other than that in which Securities are denominated, the manner for determining such payments; |
(14) | provisions for electronic issuance of Securities or issuance of Securities in uncertificated form; |
(15) | any Events of Default, covenants and/or defined terms in addition to or in lieu of those set forth in this Indenture; |
(16) | whether and upon what terms Securities may be defeased if different from the provisions set forth in this Indenture; |
(17) | the form of the Securities, which, unless the Authorizing Resolution or supplemental indenture otherwise provides, shall be in the form of Exhibit A; |
(18) | any terms that may be required by or advisable under applicable law; |
(19) | the percentage of the principal amount of the Securities which is payable if the maturity of the Securities is accelerated in the case of Securities issued at a discount from their face amount; and |
(20) | any other terms in addition to or different from those contained in this Indenture. |
(1) | the redemption date; |
(2) | the redemption price; |
(3) | the name and address of the Paying Agent; |
(4) | that Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price; |
(5) | that interest on Securities called for redemption ceases to accrue on and after the redemption date; and |
(6) | that the Securities are being redeemed pursuant to the mandatory redemption or the optional redemption provisions, as applicable. |
(a) | cause to be paid and discharged all lawful taxes, assessments and governmental charges or levies imposed upon the Company and its Restricted Subsidiaries or upon the income or profits of the Company and its Restricted Subsidiaries or upon property or any part thereof belonging to the Company and its Restricted Subsidiaries before the same shall be in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such property or any part thereof; provided, however, that the Company shall not be required to cause to be paid or discharged any such tax, assessment, charge, levy or claim so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings and the nonpayment thereof does not, in the judgment of the Company, materially adversely affect the ability of the Company and the Restricted Subsidiaries to pay all obligations under this Indenture when due; and provided further, that the Company shall not be required to cause to be paid or discharged any such tax, assessment, charge, levy or claim if, in the judgment of the Company, such payment shall not be advantageous to the Company in the conduct of its business and if the failure so to pay or discharge does not, in its judgment, materially adversely affect the ability of the Company and the Restricted Subsidiaries to pay all obligations under this Indenture when due; |
(b) | cause to be done all things necessary to preserve and keep in full force and effect the corporate existence of the Company and each of its Restricted Subsidiaries; provided, however, that nothing in this subsection (b) shall prevent a consolidation or merger of the Company or any Restricted Subsidiary not prohibited by the provisions of Article Five or any other provision or the Authorizing Resolution or supplemental indenture pertaining to a Series, and the Company need not maintain the corporate existence of an immaterial Restricted Subsidiary ; and |
(c) | at all times keep, maintain and preserve the property of the Company and the Restricted Subsidiaries in good repair, working order and condition (reasonable wear and tear excepted) and from time to time make all needful and proper repairs, renewals, replacements, betterments and improvements thereto, so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this subsection (c) shall prevent the Company from discontinuing the operation and maintenance of any such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business and not disadvantageous in any material respect to the ability of the Company and the Restricted Subsidiaries to pay all obligations under this Indenture when due. |
(1) | the Holder gives to the Trustee written notice of a continuing Event of Default on the Series; |
(2) | the Holders of at least a majority in principal amount of the outstanding Securities of the Series make a written request to the Trustee to pursue the remedy; |
(3) | such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense; |
(4) | the Trustee does not comply with the request within 90 days after receipt of the request and the offer of indemnity; and |
(5) | no written request inconsistent with such written request shall have been given to the Trustee pursuant to this Section 6.06. |
First: | to the Trustee for amounts due under Section 7.07; |
Second: | to holders of Senior Indebtedness to the extent required by Article 11; |
Third: | to Securityholders for amounts due and unpaid on the Securities for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal and interest, respectively; and |
Fourth: | to the Company as its interests may appear. The Trustee may fix a record date and payment date for any payment to Securityholders pursuant to this Section 6.10. |
(1) | the Trustee fails to comply with Section 7.10 after written request by the Company or any bona fide Securityholder who has been a Securityholder for at least six months; |
(2) | the Trustee is adjudged a bankrupt or an insolvent; |
(3) | a receiver or other public officer takes charge of the Trustee or its property; or |
(4) | the Trustee becomes incapable of acting. |
(1) | The Company shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, money in U.S. dollars or U.S. government obligations or a combination thereof in such amounts and at such times as are sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of and interest on the outstanding Securities of such Series to maturity or redemption; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such U.S. government obligations to said payments with respect to the Securities of such Series to maturity or redemption; |
(2) | No Default or Event of Default shall have occurred and be continuing on the date of such deposit; |
(3) | Such deposit will not result in a Default under this Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or any of their property is bound; |
(4) | (i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date pertaining to such Series, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that, in the case of clauses (i) and (ii), Holders of the Securities of such Series will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; |
(5) | The Company shall have delivered to the Trustee an Officers’ Certificate, stating that the deposit under clause (1) was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; |
(6) | The Company shall have delivered to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect that, (A) the trust funds will not be subject to the rights of Holders of Indebtedness of the Company other than the Securities of such Series and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of Securities of such Series is an insider of the Company, after the 91st day following the deposit, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors’ rights generally; and |
(7) | The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 8.01 have been complied with. |
(1) | All Securities of such Series theretofore authenticated and delivered (other than Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation or all such Securities not theretofore delivered to the Trustee for cancellation have become due and payable and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for that purpose an amount of money sufficient to pay and discharge the entire Indebtedness on the Securities not theretofore delivered to the Trustee for cancellation, for principal of and interest; |
(2) | The Company has paid or caused to be paid all other sums payable hereunder by the Company; |
(3) | The Company has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Securities at maturity or redemption, as the case may be; and |
(4) | The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, stating that all conditions precedent specified herein relating to the satisfaction and discharge of this Indenture have been complied with. |
(1) | to cure any ambiguity, omission, defect or inconsistency; |
(2) | to comply with Article Five; |
(3) | to provide that specific provisions of this Indenture shall not apply to a Series not previously issued; |
(4) | to create a Series and establish its terms; |
(5) | to provide for uncertificated Securities in addition to or in place of certificated Securities; and |
(6) | to make any other change that does not adversely affect the rights of Securityholders. |
(1) | reduce the amount of Securities of such Series whose Holders must consent to an amendment, supplement or waiver; |
(2) | reduce the rate of or change the time for payment of interest, including defaulted interest, on any Security; |
(3) | reduce the principal of or change the fixed maturity of any Security or alter the provisions (including related definitions) with respect to redemption of Securities pursuant to Article Three hereof or with respect to any obligations on the part of the Company to offer to purchase or to redeem Securities of a Series pursuant to the Authorizing Resolution or supplemental indenture pertaining to such Series; |
(4) | modify the ranking or priority of the Securities of any Series; |
(5) | make any change in Sections 6.04, 6.07 or this Section 9.02; |
(6) | waive a continuing Default or Event of Default in the payment of the principal of or interest on any Security; or |
(7) | make any Security payable at a place or in money other than that stated in the Security, or impair the right of any Securityholder to bring suit as permitted by Section 6.07. |
M.D.C. Holdings, Inc. 4350 South Monaco Street, Suite 500 Denver, CO 80237 Fax No.: (303) 793-2760 Attention: Chief Financial Officer | |||||||||||
Fax No.: | |||||||||||
Attention: |
(1) | an Officers’ Certificate (which shall include the statements set forth in Section 10.05) stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and |
(2) | an Opinion of Counsel (which shall include the statements set forth in Section 10.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants, compliance with which constitutes a condition precedent, if any, provided for in this Indenture relating to the proposed action or inaction, have been complied with and that any such section does not conflict with the terms of the Indenture. |
(1) | a statement that the person making such certificate or opinion has read such covenant or condition; |
(2) | a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
(3) | a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
(4) | a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. |
(1) | holders of Senior Indebtedness shall be entitled to receive payment in full in cash of the principal of and interest (including interest accruing after the commencement of any such proceeding) to the date of payment on the Senior Indebtedness before Securityholders shall be entitled to receive any payment of principal of or interest on Securities; and |
(2) | until the Senior Indebtedness is paid in full in cash, any distribution to which Securityholders would be entitled but for this Article shall be made to holders of Senior Indebtedness as their interests may appear, except that Securityholders may receive securities that are subordinated to Senior Indebtedness to at least the same extent as the Securities. |
(1) | impair, as between the Company and Securityholders, the obligation of the Company, which is absolute and unconditional, to pay principal of and interest on the Securities in accordance with their terms; |
(2) | affect the relative rights of Securityholders and creditors of the Company, other than holders of Senior Indebtedness; or |
(3) | prevent the Trustee or any Securityholder from exercising its available remedies upon a Default or Event of Default, subject to the rights of holders of Senior Indebtedness to receive distributions otherwise payable to Securityholders. |
Dated: _____________________, 20__ | M.D.C. HOLDINGS, INC. | ||||
By: | |||||
Name: | |||||
Title: | |||||
Dated: _____________________, 20__ | ______________________, as Trustee | ||||
By: | |||||
Name: | |||||
Title: | |||||
(SEAL) |
No. | CUSIP No.: _____________ |
M.D.C. HOLDINGS, INC. | |||||||||||
[Seal] | |||||||||||
By: | |||||||||||
Title: | |||||||||||
By: | |||||||||||
Title: |
Percentage | ||||||||
Date: | Your signature: | ||||
(Sign exactly as your name appears on the other side of this Security) | |||||
Signature Guarantee: |
ARTICLE ONE Definitions and Incorporation by Reference | 1 | ||||
Section 1.01. Definitions | 1 | ||||
Section 1.02. Other Definitions | 5 | ||||
Section 1.03. Incorporation by Reference of Trust Indenture Act | 6 | ||||
Section 1.04. Rules of Construction | 6 | ||||
ARTICLE TWO The Securities | 7 | ||||
Section 2.01. Form and Dating | 7 | ||||
Section 2.02. Execution and Authentication | 8 | ||||
Section 2.03. Registrar and Paying Agent | 8 | ||||
Section 2.04. Paying Agent to Hold Money in Trust | 9 | ||||
Section 2.05. Securityholder Lists | 9 | ||||
Section 2.06. Transfer and Exchange | 9 | ||||
Section 2.07. Replacement Securities | 10 | ||||
Section 2.08. Outstanding Securities | 10 | ||||
Section 2.09. Temporary Securities | 10 | ||||
Section 2.10. Cancellation | 11 | ||||
Section 2.11. Defaulted Interest | 11 | ||||
Section 2.12. Treasury Securities | 11 | ||||
Section 2.13. CUSIP Numbers | 11 | ||||
Section 2.14. Deposit of Moneys | 11 | ||||
Section 2.15. Book-Entry Provisions for Global Security | 12 | ||||
ARTICLE THREE Redemption | 13 | ||||
Section 3.01. Notices to Trustee | 13 | ||||
Section 3.02. Selection of Securities to be Redeemed | 13 | ||||
Section 3.03. Notice of Redemption | 13 | ||||
Section 3.04. Effect of Notice of Redemption | 14 | ||||
Section 3.05. Deposit of Redemption Price | 14 | ||||
Section 3.06. Securities Redeemed in Part | 14 | ||||
ARTICLE FOUR Covenants | 15 | ||||
Section 4.01. Payment of Securities | 15 | ||||
Section 4.02. Maintenance of Office or Agency | 15 | ||||
Section 4.03. Compliance Certificate | 15 | ||||
Section 4.04. Payment of Taxes; Maintenance of Corporate Existence; Maintenance of Properties | 15 | ||||
ARTICLE FIVE Successor Corporation | 16 | ||||
Section 5.01. When Company May Merge, etc | 16 | ||||
ARTICLE SIX Defaults and Remedies | 17 | ||||
Section 6.01. Events of Default | 17 | ||||
Section 6.02. Acceleration | 18 | ||||
Section 6.03. Other Remedies | 19 | ||||
Section 6.04. Waiver of Existing Defaults | 19 | ||||
Section 6.05. Control by Majority | 19 | ||||
Section 6.06. Limitation on Suits | 19 |
Section 6.07. Rights of Holders to Receive Payment | 20 | ||||
Section 6.08. Collection Suit by Trustee | 20 | ||||
Section 6.09. Trustee May File Proofs of Claim | 20 | ||||
Section 6.10. Priorities | 21 | ||||
Section 6.11. Undertaking for Costs | 21 | ||||
ARTICLE SEVEN Trustee | 21 | ||||
Section 7.01. Duties of Trustee | 21 | ||||
Section 7.02. Rights of Trustee | 22 | ||||
Section 7.03. Individual Rights of Trustee | 23 | ||||
Section 7.04. Trustee’s Disclaimer | 23 | ||||
Section 7.05. Notice of Defaults | 23 | ||||
Section 7.06. Reports by Trustee to Holders | 24 | ||||
Section 7.07. Compensation and Indemnity | 24 | ||||
Section 7.08. Replacement of Trustee | 24 | ||||
Section 7.09. Successor Trustee by Merger, etc | 25 | ||||
Section 7.10. Eligibility; Disqualification | 25 | ||||
Section 7.11. Preferential Collection of Claims Against Company | 25 | ||||
ARTICLE EIGHT Discharge of Indenture | 26 | ||||
Section 8.01. Defeasance Upon Deposit of Moneys or U | 26 | ||||
Section 8.02. Survival of the Company’s Obligations | 28 | ||||
Section 8.03. Application of Trust Money | 28 | ||||
Section 8.04. Repayment to the Company | 29 | ||||
Section 8.05. Reinstatement | 29 | ||||
ARTICLE NINE Amendments, Supplements and Waivers | 29 | ||||
Section 9.01. Without Consent of Holders | 29 | ||||
Section 9.02. With Consent of Holders | 30 | ||||
Section 9.03. Compliance with Trust Indenture Act | 31 | ||||
Section 9.04. Revocation and Effect of Consents | 31 | ||||
Section 9.05. Notation on or Exchange of Securities | 31 | ||||
Section 9.06. Trustee to Sign Amendments, etc | 32 | ||||
ARTICLE TEN ARTICLE TEN Miscellaneous | 32 | ||||
Section 10.01. Trust Indenture Act Controls | 32 | ||||
Section 10.02. Notices | 32 | ||||
Section 10.03. Communications by Holders with Other Holders | 33 | ||||
Section 10.04. Certificate and Opinion as to Conditions Precedent | 33 | ||||
Section 10.05. Statements Required in Certificate or Opinion | 33 | ||||
Section 10.06. Rules by Trustee and Agents | 34 | ||||
Section 10.07. Legal Holidays | 34 | ||||
Section 10.08. Governing Law | 34 | ||||
Section 10.09. No Adverse Interpretation of Other Agreements | 34 | ||||
Section 10.10. No Recourse Against Others | 34 | ||||
Section 10.11. Successors and Assigns | 34 | ||||
Section 10.12. Duplicate Originals | 34 | ||||
Section 10.13. Severability | 34 |
ARTICLE ELEVEN Subordination | 35 | ||||
Section 11.01. Agreement to Subordinate | 35 | ||||
Section 11.02. Certain Definitions | 35 | ||||
Section 11.03. Liquidation; Dissolution; Bankruptcy | 35 | ||||
Section 11.04. Default on Senior Indebtedness | 35 | ||||
Section 11.05. Acceleration of Securities | 36 | ||||
Section 11.06. When Distributions Must Be Paid Over | 36 | ||||
Section 11.07. Notice by the Company | 36 | ||||
Section 11.08. Subrogation | 37 | ||||
Section 11.09. Relative Rights | 37 | ||||
Section 11.10. Subordination May Not Be Impaired by the Company | 37 | ||||
Section 11.11. Distribution or Notice to the Representative | 37 | ||||
Section 11.12. Rights of the Trustee and Paying Agent | 37 | ||||
Section 11.13. No Fiduciary Duty to Holders of Senior Indebtedness | 38 |
TIA Section | Indenture Section | ||||
310(a)(1) | 7.10 | ||||
(a)(2) | 7.10 | ||||
(a)(3) | N.A. | ||||
(a)(4) | N.A. | ||||
(b) | 7.08; 7.10; 10.02 | ||||
311(a) | 7.11 | ||||
(b) | 7.11 | ||||
(c) | N.A. | ||||
312(a) | 2.05 | ||||
(b) | 10.03 | ||||
(c) | 10.03 | ||||
313(a) | 7.06 | ||||
(b)(1) | N.A. | ||||
(b)(2) | 7.06 | ||||
(c) | 10.02 | ||||
(d) | 7.06 | ||||
314(a) | 7.06; 10.02 | ||||
(b) | N.A. | ||||
(c)(1) | 10.04 | ||||
(c)(2) | 10.04 | ||||
(c)(3) | N.A. | ||||
(d) | N.A. | ||||
(e) | 10.05 | ||||
(f) | N.A. | ||||
315(a) | 7.01(b) | ||||
(b) | 7.05; 10.02 | ||||
(c) | 7.01(a) | ||||
(d) | 7.01(c) | ||||
(e) | 6.11 | ||||
316(a)(last sentence) | 2.12 | ||||
(a)(1)(A) | 6.05 | ||||
(a)(1)(B) | 6.04 | ||||
(a)(2) | N.A. | ||||
(b) | 6.07 | ||||
(c) | 9.04 | ||||
317(a)(1) | 6.08 | ||||
(a)(2) | 6.09 | ||||
(b) | 2.04 | ||||
318(a) | 10.01 | ||||
N.A. means Not Applicable. |
Term | Defined in Section | ||||
“Agent Members” | 2.15 | ||||
“Business Day” | 10.07 | ||||
“Custodian” | 6.01 | ||||
“Depositary” | 2.15 | ||||
“Event of Default” | 6.01 | ||||
“Legal Holiday” | 10.07 | ||||
“Paying Agent” | 2.03 | ||||
“Registrar” | 2.03 | ||||
“Senior Indebtedness” | 1.02 | ||||
“Representative” | 11.02 |
First: | to the Trustee for amounts due under Section 7.07; |
Second: | to holders of Senior Indebtedness to the extent required by Article 11; |
Third: | to Securityholders for amounts due and unpaid on the Securities for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal and interest, respectively; and |
Fourth: | to the Company as its interests may appear. |
M.D.C. HOLDINGS, INC. By: Name: Title: |
______________________, as Trustee |
By: Name: Title: |
No. | CUSIP No.: _____________ |
M.D.C. HOLDINGS, INC. | |||||||||||
[Seal] | |||||||||||
By: | |||||||||||
Title: | |||||||||||
By: | |||||||||||
Title: |
Date: | Your signature: | ||||
(Sign exactly as your name appears on the other side of this Security) | |||||
Signature Guarantee: |
[Letterhead of Sherman & Howard, L.L.C.] |
● | shares of common stock, $0.01 par value per share, of the Company (the “Common Stock”); |
● | shares of preferred stock, $0.01 par value per share, of the Company (the “Preferred Stock”); |
● | senior debt securities, in one or more series (the “Senior Debt Securities”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Senior Debt Securities thereunder, by and between a trustee to be selected by the Company (the “Trustee”) and the Company, in the form filed as Exhibit 4.1 to the Registration Statement (the “Senior Indenture”); |
● | subordinated debt securities, in one or more series (the “Subordinated Debt Securities”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Subordinated Debt Securities thereunder, by and between the Trustee and the Company, in the form filed as Exhibit 4.2 to the Registration Statement (the “Subordinated Indenture”); |
● | junior subordinated debt securities, in one or more series (the “Junior Subordinated Debt Securities” and, together with the Senior Debt Securities and the Subordinated Debt Securities, the “Debt Securities”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Junior Subordinated Debt Securities thereunder, by and between the Trustee and the Company, in the form filed as Exhibit 4.3 to the Registration Statement (the “Junior Subordinated Indenture”); and |
● | guarantees (the “Guarantees”) by some or all of the co-registrants named in the Registration Statement (each co-registrant that guarantees Senior Debt Securities, a “Guarantor” and collectively the “Guarantors”) of those Senior Debt Securities that pursuant to their terms are guaranteed by the Guarantors (the “Guaranteed Senior Debt Securities”). |
Sincerely, /s/ Sherman & Howard, L.L.C. |
/s/ ERNST & YOUNG LLP | ||
Denver, Colorado | ||
July 1, 2022 |
Signature | Title | Date | ||||||||||||||||||
/s/ Larry A. Mizel | Executive Chairman and a Director | June 28, 2022 | ||||||||||||||||||
Larry A. Mizel | (Principal Executive Officer) | |||||||||||||||||||
/s/ Robert N Martin | Senior Vice President, Chief Financial Officer | June 28, 2022 | ||||||||||||||||||
Robert N. Martin | and Principal Accounting Officer (Principal | |||||||||||||||||||
Financial and Accounting Officer) | ||||||||||||||||||||
/s/ David D. Mandarich | President, Chief Executive Officer and a Director | June 28, 2022 | ||||||||||||||||||
David D. Mandarich | ||||||||||||||||||||
/s/ Raymond T. Baker | Director | June 28, 2022 | ||||||||||||||||||
Raymond T. Baker | ||||||||||||||||||||
/s/ Michael A. Berman | Director | June 28, 2022 | ||||||||||||||||||
Michael A. Berman | ||||||||||||||||||||
/s/ David E. Blackford | Director | June 28, 2022 | ||||||||||||||||||
David E. Blackford | ||||||||||||||||||||
/s/ Herbert T. Buchwald | Director | June 28, 2022 | ||||||||||||||||||
Herbert T. Buchwald | ||||||||||||||||||||
/s/ Courtney L. Mizel | Director | June 28, 2022 | ||||||||||||||||||
Courtney L. Mizel | ||||||||||||||||||||
/s/ Paris G. Reece III | Director | June 28, 2022 | ||||||||||||||||||
Paris G. Reece III | ||||||||||||||||||||
/s/ David Siegel | Director | June 28, 2022 | ||||||||||||||||||
David Siegel | ||||||||||||||||||||
/s/ Janice Sinden | Director | June 28, 2022 | ||||||||||||||||||
Janice Sinden |
800 Nicollet Mall Minneapolis, Minnesota | 55402 | ||||
(Address of principal executive offices) | (Zip Code) |
Delaware | 84-0622967 | ||||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | ||||
4350 South Monaco Street, Suite 500 Denver, Colorado | 80237 | ||||
(Address of Principal Executive Offices) | (Zip Code) |
3/31/2022 | |||||||||||
Assets | |||||||||||
Cash and Balances Due From | $ | 612,028 | |||||||||
Depository Institutions | |||||||||||
Securities | 4,678 | ||||||||||
Federal Funds | 0 | ||||||||||
Loans & Lease Financing Receivables | 0 | ||||||||||
Fixed Assets | 2,935 | ||||||||||
Intangible Assets | 583,387 | ||||||||||
Other Assets | 70,964 | ||||||||||
Total Assets | $ | 1,273,992 | |||||||||
Liabilities | |||||||||||
Deposits | $ | 0 | |||||||||
Fed Funds | 0 | ||||||||||
Treasury Demand Notes | 0 | ||||||||||
Trading Liabilities | 0 | ||||||||||
Other borrowed Money | 0 | ||||||||||
Acceptances | 0 | ||||||||||
Subordinated Notes and Debentures | 0 | ||||||||||
Other Liabilities | 81,226 | ||||||||||
Total Liabilities | $ | 81,226 | |||||||||
Equity | |||||||||||
Common and Preferred Stock | $ | 200 | |||||||||
Surplus | 1,171,635 | ||||||||||
Undivided Profits | 20,931 | ||||||||||
Minority Interest in Subsidiaries | 0 | ||||||||||
Total Equity Capital | $ | 1,192,766 | |||||||||
Total Liabilities and Equity Capital | $ | 1,273,992 |
Security Type | Security Class Title | Fee Calculation or Carry Forward Rule | Amount Registered | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | Carry Forward Form Type | Carry Forward File Number | Carry Forward Initial effective date | Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
Newly Registered Securities | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Fees to Be Paid | Debt | Debt securities | Rule 456(b) and Rule 457(r)(4) | (1) | (3) | (3) | (4) | (4) | N/A | N/A | N/A | N/A | |||||||||||||||||||||||||||||||||||||||||||||||||||||
Debt | Guarantees of debt securities(5) | Rule 456(b) and Rule 457(r)(4) | (1) | (3) | (3) | (4) | (4) | N/A | N/A | N/A | N/A | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
Equity | Common shares | Rule 456(b) and Rule 457(r)(4) | (1)(2) | (3) | (3) | (4) | (4) | N/A | N/A | N/A | N/A | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
Equity | Preferred shares | Rule 456(b) and Rule 457(r)(4) | (1)(2) | (3) | (3) | (4) | (4) | N/A | N/A | N/A | N/A | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
Fees Previously Paid | N/A | N/A | N/A | N/A | N/A | N/A | N/A | N/A | N/A | N/A | N/A | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
Carry Forward Securities | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Carry Forward Securities | N/A | N/A | N/A | N/A | N/A | N/A | N/A | N/A | N/A | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Total Offering Amounts | (1) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Total Fees Previously Paid | — | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Total Fee Offsets | — | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Net Fee Due | $0 |
(1) | The securities registered hereunder include such indeterminate number of (a) shares of common stock, (b) shares of preferred stock, and (c) debt securities, as may be sold from time to time by the registrant. There are also being registered hereunder an indeterminate number of shares of common stock and preferred stock as shall be issuable upon conversion, exchange or exercise of any securities that provide for such issuance. |
(2) | Pursuant to Rule 416 under the Securities Act of 1933, as amended, or the Securities Act, this registration statement shall also cover any additional shares of the registrant’s securities that become issuable by reason of any stock splits, stock dividend or similar transaction. Includes rights to acquire common stock or preferred stock of the registrant under any shareholder rights plan then in effect, if applicable under the terms of any such plan. |
(3) | The proposed maximum per security and aggregate offering prices per class of securities will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities, or that are issued in units. |
(4) | In accordance with Rules 456(b) and 457(r) under the Securities Act, the registrant is deferring payment of the entire registration fee. Any subsequent registration fees will be paid on a pay-as-you-go basis. The registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee rate in effect on the date of such fee payment. |
(5) | The guarantees are the full and unconditional guarantee of M.D.C. Holdings, Inc.’s obligations under its debt securities by its wholly-owned subsidiaries. No separate consideration will be received for the guarantees. No additional registration fee is payable with respect to the guarantees pursuant to Rule 457(n) under the Securities Act. |