Exhibit 4.4
COMMITMENT AND ACCEPTANCE
This Commitment and Acceptance (this "Commitment and Acceptance") dated
as of October 16, 2000, is entered into among the parties listed on the
signature pages hereof. Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement (as
defined below).
PRELIMINARY STATEMENTS
Reference is made to that certain Amended and Restated Credit Agreement
dated as of October 8, 1999, by and among M.D.C. Holdings, Inc., as Borrower,
Bank One, NA, as Administrative Agent, and the Banks that are parties thereto
(as the same may from time to time be amended, modified, supplemented or
restated, in whole or in part and without limitation as to amount, terms,
conditions or covenants, the "Credit Agreement").
Pursuant to Section 2.5(d) of the Credit Agreement, Borrower has
requested an increase in the Aggregate Commitment from $375,000,000.00 to
$413,000,000.00. Such increase in the Aggregate Commitment is to become
effective on October 16, 2000 (the "Increase Date"). In connection with such
requested increase in the Aggregate Commitment, Borrower, Administrative Agent,
and U.S. Bank National Association (the "Accepting Bank") hereby agree as
follows:
1. ACCEPTING BANK'S COMMITMENT. Effective as of the Increase Date,
Accepting Bank shall become a party to the Credit Agreement as a Bank, shall
have all of the rights and obligations of a Bank thereunder, shall agree to be
bound by the terms and provisions thereof and shall thereupon have a Commitment
under and for purposes of the Credit Agreement in an amount equal to the amount
set forth opposite its name on the signature page hereof.
2. REPRESENTATIONS AND AGREEMENTS OF ACCEPTING BANK. Accepting Bank (i)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by Accepting Bank and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Commitment and Acceptance, (ii) agrees
that it will, independently and without reliance upon Administrative Agent or
any Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, (iii) appoints and authorizes
Administrative Agent to take such action as Administrative Agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, (iv) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents
are required to be performed by it as a Bank, (v) agrees that its payment
instructions and notice instructions are as set forth in the attachment to
Schedule 1, and (vi) confirms that none of the funds, monies, assets or other
consideration being used to make the commitment and acceptance hereunder are
"plan assets" as defined under ERISA and that its rights, benefits and interests
in and under the Loan Documents will not be "plan assets" under ERISA.
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3. REPRESENTATION OF BORROWER. Borrower hereby represents and warrants
that as of the date hereof and as of the Increase Date, no event or condition
shall have occurred and then be continuing which constitutes a Default or
Unmatured Default.
4. GOVERNING LAW. This Commitment and Acceptance shall be governed by
the internal law, and not the law of conflicts, of the State of Illinois.
5. NOTICES. For the purpose of notices to be given under the Credit
Agreement, the address of Accepting Bank (until notice of a change is delivered)
shall be the address set forth in Schedule 1.
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IN WITNESS WHEREOF, the parties hereto have executed this Commitment
and Acceptance by their duly authorized officers as of the date first above
written.
BORROWER:
M.D.C. HOLDINGS, INC.
By: /s/ John J. Heaney
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Name: John J. Heaney
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Title: Senior Vice President and
Treasurer
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ADMINISTRATIVE AGENT:
BANK ONE, NA,
as ADMINISTRATIVE AGENT
By: /s/ Lynn M. Ciuchta
--------------------------------
Name: Lynn M. Ciuchta
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Title: Vice President
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ACCEPTING BANK:
$38,000,000.00 U.S. BANK NATIONAL ASSOCIATION
By: /s/ Michael Raarup
--------------------------------
Name: Michael Raarup
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Title: Vice President
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SCHEDULE 1
to Commitment and Acceptance
1. Attach Accepting Bank's Administrative Information Sheet, which must
include its payment instructions and notice address.
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