Exhibit 4.12
COMMON SECURITIES GUARANTEE AGREEMENT
M.D.C. HOLDINGS, INC.
Dated as of
Relating to Common Securities of
MDC CAPITAL FUNDING TRUST [ ]
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions Interpretation..................................................................2
ARTICLE II
GUARANTEE
SECTION 2.1 Guarantee...................................................................................3
SECTION 2.2 Waiver of Notice and Demand.................................................................4
SECTION 2.3 Obligations Not Affected....................................................................4
SECTION 2.4 Rights of Holders...........................................................................5
SECTION 2.5 Guarantee of Payment........................................................................5
SECTION 2.6 Subrogation.................................................................................5
SECTION 2.7 Independent Obligations.....................................................................5
ARTICLE III
LIMITATION OF TRANSACTIONS
SECTION 3.1 Limitation of Transactions..................................................................6
ARTICLE IV
TERMINATION
SECTION 4.1 Termination.................................................................................6
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Successors and Assigns......................................................................7
SECTION 5.2 Amendments..................................................................................7
SECTION 5.3 Notices.....................................................................................7
SECTION 5.4 Benefit.....................................................................................8
SECTION 5.5 Governing Law...............................................................................8
SECTION 5.6 No Recourse Against Certain Persons.........................................................8
COMMON SECURITIES GUARANTEE AGREEMENT
GUARANTEE AGREEMENT (this "Common Securities Guarantee"),
dated as of [ ], is executed and delivered by M.D.C. Holdings, Inc., a
Delaware corporation (the "Guarantor"), for the benefit of the Holders (as
defined herein) from time to time of the Common Securities (as defined herein)
of MDC Capital Funding Trust [ ], a Delaware business trust (the "Issuer").
WHEREAS, pursuant to an amended and restated Declaration of
Trust (the "Declaration"), dated as of [ ], among the Trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing on the date hereof common securities having an aggregate
liquidation amount of $ designated the Common Securities (the "Common
Securities");
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth in this Common Securities Guarantee, to pay to the Holders
of the Common Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Capital Securities Guarantee") in substantially
identical terms to this Common Securities Guarantee for the benefit of the
holders of the Capital Securities (as defined herein), except that if an Event
of Default (as such term is defined in the Indenture) has occurred and is
continuing, the rights of Holders of the Common Securities to receive Guarantee
Payments under this Common Securities Guarantee are subordinated to the rights
of holders of Capital Securities to receive guarantee payments under the Capital
Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Common Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Common
Securities Guarantee for the benefit of the Holders.
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS INTERPRETATION.
In this Common Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Common Securities Guarantee
but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Declaration as at the date of
execution of this Common Securities Guarantee have the same meaning
when used in this Common Securities Guarantee unless otherwise defined
in this Common Securities Guarantee;
(c) a term defined anywhere in this Common Securities
Guarantee has the same meaning throughout;
(d) all references to "the Common Securities Guarantee" or
"this Common Securities Guarantee" are to this Common Securities
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Common Securities Guarantee to
Articles and Sections are to Articles and Sections of this Common
Securities Guarantee unless otherwise specified; and
(f) a reference to the singular includes the plural and vice
versa.
"Capital Securities" shall mean the securities representing
preferred undivided beneficial interests in the assets of the Issuer.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Common Securities, to
the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions that are required to be paid on such Common Securities, to the
extent the Issuer has funds available therefor, (ii) the redemption price,
including all accrued and unpaid Distributions to the date of redemption (the
"Redemption Price"), to the extent the Issuer has funds available therefor, with
respect to any Common Securities called for redemption by the Issuer, and (iii)
upon a voluntary or involuntary dissolution, winding-up or termination of the
Issuer (other than in connection with the distribution of Trust Debentures to
the Holders in exchange for Common Securities
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as provided in the Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Common
Securities to the date of payment, to the extent the Issuer has funds available
therefor, and (b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution"). If an Event of Default (as defined in the
Indenture) has occurred and is continuing, the rights of Holders of the Common
Securities to receive Guarantee Payments under this Common Securities Guarantee
are subordinated to the rights of holders of Capital Securities to receive
guarantee payments under the Capital Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Common Securities.
"Indenture" means the Indenture dated as of [ ],
between the Guarantor and [ ], as Trustee, and the First Supplemental
Indenture thereto pursuant to which certain subordinated debt securities of the
Guarantor are to be issued to the Property Trustee (as defined in the
Declaration), as from time to time amended.
"Property Trustee" shall have the meaning ascribed to such
term in the Declaration.
"Trust Debentures" means the series of subordinated debt
securities of the Guarantor designated the [ ], held by the Property
Trustee.
ARTICLE II
GUARANTEE
SECTION 2.1 GUARANTEE
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
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SECTION 2.2 WAIVER OF NOTICE AND DEMAND
The Guarantor hereby waives notice of acceptance of this
Common Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 2.3 OBLIGATIONS NOT AFFECTED
The obligations, covenants, agreements and duties of the
Guarantor under this Common Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Common
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Common
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Common
Securities (other than an extension of time for payment of
Distributions or other sum payable that results from the extension of
any interest payment period on the Trust Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Common Securities, or any action on the part of the Issuer
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Common
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
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(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor;
it being the intent of this Section 2.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.4 RIGHTS OF HOLDERS
The Guarantor expressly acknowledges that any Holder of Common
Securities may institute a legal proceeding directly against the Guarantor to
enforce its rights under this Common Securities Guarantee, without first
instituting a legal proceeding against the Issuer or any other Person.
SECTION 2.5 GUARANTEE OF PAYMENT
This Common Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 2.6 SUBROGATION
The Guarantor shall be subrogated to all (if any) rights of
the Holders of Common Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Common Securities Guarantee;
PROVIDED, HOWEVER, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Common
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Common Securities Guarantee. If any amount shall be paid
to the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders.
SECTION 2.7 INDEPENDENT OBLIGATIONS
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Common
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Common
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 2.3 hereof.
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ARTICLE III
LIMITATION OF TRANSACTIONS
SECTION 3.1 LIMITATION OF TRANSACTIONS
(a) So long as any Common Securities remain outstanding, if
(i) the Guarantor shall be in default with respect to its Guarantee Payments or
other obligations hereunder, or (ii) if an Event of Default (as defined in the
Indenture) shall exist then (a) the Guarantor shall not declare or pay any
dividend on, or make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock,
or make any guarantee payments with respect to any of the foregoing, and (b) the
Guarantor shall not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities issued by the Guarantor
(including any guarantees) which rank pari passu with or junior to the Trust
Debentures.
(b) Notwithstanding subsection 3.1(a) or any other language to
the contrary contained in this Common Securities Guarantee, nothing shall
prevent the Guarantor from: (i) declaring or paying any dividend on, or making
any distribution with respect to, or redeeming, purchasing, acquiring or making
a liquidation payment with respect to, any of its capital stock in or with (x)
securities of the Guarantor (including capital stock) that rank junior to such
capital stock or (y) securities (including capital stock) of the Guarantor or
(ii) paying any interest, principal or premium on, or repaying, repurchasing or
redeeming, any debt securities issued by the Guarantor that rank pari passu with
or junior to the Trust Debentures, with securities of the Guarantor (including
capital stock) that rank junior to such debt securities.
ARTICLE IV
TERMINATION
SECTION 4.1 TERMINATION
This Common Securities Guarantee shall terminate upon the
first to occur of (i) full payment of the Redemption Price of all Common
Securities, (ii) the distribution of Trust Debentures to the Holders of all of
the Common Securities or (iii) the full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Common Securities Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any Holder of Common
Securities
must restore payment of any sums paid under the Common Securities or
under this Common Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 SUCCESSORS AND ASSIGNS
All guarantees and agreements contained in this Common
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Common Securities then outstanding.
SECTION 5.2 AMENDMENTS
Except with respect to any changes which do not adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Common Securities Guarantee may only be amended with the prior
approval of the Holders of at least a majority in liquidation amount of all the
outstanding Common Securities. The provisions of Section 12.2 of the Declaration
with respect to meetings of Holders of the Securities apply to the giving of
such approval.
SECTION 5.3 NOTICES
All notices provided for in this Common Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Issuer, in care of the Regular Trustees at
the Issuer's mailing address set forth below (or such other address as
the Issuer may give notice of to the Holders of the Common Securities):
MDC Capital Funding Trust [ ]
c/o M.D.C. Holdings, Inc.
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Attention:
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(b) if given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may
give notice of to the Holders of the Common Securities):
M.D.C. Holdings, Inc.
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Attention:
(c) if given to any Holder of Common Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 5.4 BENEFIT
This Common Securities Guarantee is solely for the benefit of
the Holders of the Common Securities and is not separately transferable from the
Common Securities.
SECTION 5.5 GOVERNING LAW
THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES.
SECTION 5.6 NO RECOURSE AGAINST CERTAIN PERSONS
No past, present or future director, officer, employee or
stockholder, as such, of the Guarantor or any successor thereof shall have any
liability for any obligations of the Guarantor under this Capital Securities
Guarantee or for any claim based on, in respect of, or by reason of, such
obligations or their creation and all such liability is hereby waived and
released. Such waiver and release are part of the consideration for the issue of
this Common Securities Guarantee and the Common Securities.
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THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO CONFLICTS OF
This Common Securities Guarantee is executed as of the day and
year first above written.
M.D.C. HOLDINGS, INC.
By:
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Name:
Title: