Exhibit 4.9
DECLARATION OF TRUST
OF
MDC CAPITAL FUNDING TRUST II
This Declaration of Trust, dated as of January 8, 1999 between M.D.C.
Holdings, Inc., a Delaware corporation, as "Sponsor", and Xxxxxx X. Xxxxx, as
"Regular Trustee" and First Chicago Delaware Inc. as "Delaware Trustee" (the
Delaware Trustee and the Regular Trustee together, the "Trustees"). The
Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as MDC CAPITAL FUNDING
TRUST II (the "Trust"), in which name the Trustees or the Sponsor, to the
extent provided herein, may conduct the business of the Trust, make and
execute contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trustees hereby acknowledge receipt of such amount
from the Sponsor, which amount shall constitute the initial trust estate.
The Trustees hereby declare that they will hold the trust estate for the
Sponsor. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 DEL. C. Section 3801 ET SEQ. (the "Business Trust Act"),
and that this document constitutes the governing instrument of the Trust.
The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in accordance with
the provisions of the Business Trust Act.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form to be included as an exhibit to the 1933 Act
Registration Statement (as defined below), to provide for the contemplated
operation of the Trust created hereby and the issuance of the Capital
Securities and Common Securities referred to therein. Prior to the execution
and delivery of such amended and restated Declaration of Trust, the Trustees
shall not have any duty or obligation hereunder or with respect to the trust
estate, except as otherwise required by applicable law or as may be necessary
to obtain prior to such execution and delivery any licenses, consents or
approvals required by applicable law or otherwise.
4. The Sponsor and the Regular Trustee hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to such 1933 Act Registration Statement (including the prospectus
and the exhibits contained therein), relating to the registration under the
Securities Act of 1933, as amended, of the Common Securities and Capital
Securities of the Trust and certain other securities and any other necessary
documents relating thereto and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
Capital Securities of the Trust under Section 12 of the Securities Exchange
Act of 1934, as amended; (ii) to file with one or more national securities
exchange (each, an "Exchange") or the National Association of Securities
Dealers ("NASD") and execute on behalf of the Trust a listing application or
applications and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Capital Securities and Common
Securities to be listed on any such Exchange or the NASD's Nasdaq National
Market ("NASDAQ"); (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as the
Sponsor, on behalf of the Trust, may deem necessary or desirable to register
the Capital Securities and Common Securities under the securities or "Blue
Sky" laws; (iv) to execute on behalf of the Trust such Underwriting
Agreements with one or more underwriters relating to the offering of the
Capital Securities as the Sponsor, on behalf of the Trust, may deem necessary
or desirable; (v) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Capital Securities
of the Trust; and (vi) to execute, deliver and perform on behalf of the Trust
one or more purchase agreements, dealer/manager agreements, escrow
agreements, registration rights agreements and other related agreements
providing for or relating to the sale of the Capital Securities and Common
Securities of the Trust. In the event that any filing referred to in clauses
(i), (ii) and (iii) above is required by the rules and regulations of the
Commission, any Exchange, the NASD or state securities or Blue Sky laws, to
be executed on behalf of the Trust by one of the Trustees, the Sponsor and
any of the Trustees appointed pursuant to Section 6 hereof are hereby
authorized to join in any such filing and to execute on behalf of the Trust
any and all of the foregoing. It being understood that First Chicago
Delaware Inc., in its capacity as Trustee of the Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any such
document unless required by the rules and regulations of the Commission, the
NASD or any other national stock exchange or state securities or blue sky
laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be two (2) and thereafter
the number of Trustees shall be such number as shall be fixed from time to
time by a written instrument signed by the Sponsor which may increase or
decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural
person who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove
without cause any of the Trustees at any time. Any of the Trustees may
resign upon thirty days' prior notice to the Sponsor PROVIDED, HOWEVER, such
notice shall not be required if it is waived by the Sponsor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall not
have any of the powers or duties of the trustees set forth herein and shall
be a Trustee of the Trust for the sole purpose of satisfying the requirements
of Section 3807(a) of the Business Trust Act.
8. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
M.D.C. HOLDINGS, INC.,
as Sponsor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Secretary
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FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
as Regular Trustee
