EXHIBIT 4.11
AMENDED AND RESTATED
PROMISSORY NOTE
$__,000,000 January 8, 2003
Chicago, Illinois
FOR VALUE RECEIVED, M.D.C. HOLDINGS, INC., a Delaware corporation
("Maker"), hereby promises and agrees to pay to the order of WACHOVIA BANK, N.A.
("Payee"), the principal sum of _________ MILLION DOLLARS ($__,000,000) 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 amends and restates, and replaces, that certain
Promissory Note dated July 30, 2002 executed by Maker payable to the order of
Payee in the principal amount of $__,000,000 and is one of the Notes referred to
in the Second Amended and Restated Credit Agreement dated as of July 30, 2002,
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 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:
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Name: John J. Heaney
Title: Senior Vice President
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