Exhibit 4.5
PROMISSORY NOTE
$38,000,000.00 October 16, 2000
Chicago, Illinois
FOR VALUE RECEIVED, M.D.C. HOLDINGS, INC., a Delaware
corporation ("Maker"), hereby promises and agrees to pay to the order of U.S.
BANK NATIONAL ASSOCIATION ("Payee"), the principal sum of THIRTY-EIGHT MILLION
DOLLARS ($38,000,000.00) in lawful money of the United States of America, or, if
less than such principal amount, the aggregate unpaid principal amount of all
Advances made to Maker by the Payee pursuant to the Credit Agreement hereinafter
referenced. Such payment shall be made on the Facility Termination Date, as
defined in the Credit Agreement.
Maker shall pay interest from the date hereof on the unpaid
principal amount of this Note from time to time outstanding during the period
from the date hereof until such principal amount is paid in full at the rates,
determined in the manner, and on the dates or occurrences specified in the
Credit Agreement (as hereinafter defined).
This promissory note is one of the Notes referred to in the
Amended and Restated Credit Agreement dated as of October 8, 1999, among Maker,
Bank One, NA, as Administrative Agent, and the Banks that are parties thereto
(as the same may be amended, modified, replaced, or renewed from time to time,
the "Credit Agreement") and is entitled to the benefits of the Credit Agreement
and the Loan Documents. Capitalized terms used in this Note without definition
shall have the same meanings as are ascribed to such terms in the Credit
Agreement.
Both principal and interest are payable to Administrative
Agent for the account of Payee pursuant to the terms of the Credit Agreement.
All Advances made by Payee pursuant to the Credit Agreement and all payments of
the principal amount of such Advances, shall be endorsed by the holder of this
Note on the schedule attached hereto. Failure to record such Advances or payment
shall not diminish any rights of Payee or relieve Makers of any liability
hereunder or under the Credit Agreement. This Note is subject to prepayment and
its maturity is subject to acceleration, in each case upon the terms provided in
the Credit Agreement.
This Note may not be modified or discharged orally, by course
of dealing or otherwise, but only by a writing duly executed by the holder
hereof.
In the event that any action, suit or proceeding is brought by
the holder hereof to collect this Note, Maker agrees to pay and shall be liable
for all costs and expenses of collection, including without limitation,
reasonable attorneys' fees and disbursements.
Maker and all sureties, guarantors and/or endorsers hereof (or
of any obligation hereunder) and accommodation parties hereon (all of which,
including Maker, are each hereinafter called a "Surety") each: (a) waive any
homestead or exemption laws and right thereunder affecting the full collection
of this Note; (b) waive any and all formalities in connection with this Note to
the maximum extent allowed by law, including (but not limited to) demand,
diligence, presentment for payment, protest and demand, and notice of extension,
dishonor, protest, demand and nonpayment of this Note; and (c) consent that
Holder may extend the time of payment or otherwise modify the terms of payment
of any part or the whole of the
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debt evidenced by this Note, at the request of any other person liable hereon,
and such consent shall not alter nor diminish the liability of any person
hereon.
In addition, each Surety waives and agrees not to assert: (a)
any right to require the holder hereof to proceed against any other Surety, to
proceed against or exhaust any security for the Note, to pursue any other remedy
available to the holder hereof, or to pursue any remedy in any particular order
or manner; (b) the benefit of any statute of limitations affecting its liability
hereunder or the enforcement hereof; (c) the benefits of any legal or equitable
doctrine or principle of marshalling; (d) notice of the existence, creation or
incurring of new or additional indebtedness of Maker to the holder hereof; or
(e) any defense arising by reason of any disability or other defense of Maker or
by reason of the cessation from any cause whatsoever (other than payment in
full) of the liability of Maker for payment of this Note. Until payment in full
of this Note and the holder hereof has no obligation to make any further
advances of the proceeds hereof, no Surety shall have any right of subrogation
and each hereby waives any right to enforce any remedy which the holder hereof
now has, or may hereafter have, against Maker or any other Surety, and waives
any benefit of, and any right to participate in, any security now or hereafter
held by the holder hereof.
Maker agrees that to the extent any Surety makes any payment
to the holder hereof in connection with the indebtedness evidenced by this Note,
and all or any part of such payment is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid by Holder or paid
over to a trustee, receiver or any other entity, whether under any bankruptcy
act or otherwise (any such payment is hereinafter referred to as a "Preferential
Payment"), then the indebtedness of Maker under this Note shall continue or
shall be reinstated, as the case may be, and, to the extent of such payment or
repayment by the holder hereof, the indebtedness evidenced by this Note or part
thereof intended to be satisfied by such Preferential Payment shall be revived
and continued in full force and effect as if said Preferential Payment had not
been made.
This Note has been delivered in the City of Chicago and State
of Illinois, and shall be enforced under and governed by the laws of the State
of Illinois applicable to contracts made and to be performed entirely within
said state, without references to any choice or conflicts of law principles.
M.D.C. HOLDINGS, INC., a Delaware
corporation
By: /s/ John J. Heaney
-----------------------------------
Name: John J. Heaney
Title: Senior Vice President
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