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Exhibit 10
FOURTH AMENDMENT TO CREDIT AGREEMENT
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THIS FOURTH AMENDMENT to Credit Agreement (this "Amendment") is entered
into as of the 23rd day of May, 2001, by and among (a) Dominion Homes, Inc. (the
"Company"), (b) the institutions from time to time party to the Credit Agreement
(as defined below) as lenders (individually, a "Lender" and collectively, the
"Lenders"), and (c) The Huntington National Bank ("Huntington"), in its separate
capacity as administrative agent for the Lenders (with its successors in such
capacity, the "Administrative Agent").
RECITALS:
A. As of May 29, 1998, the Company, the Lenders, the Administrative Agent,
Huntington, in its capacity as Issuing Bank, and Huntington Capital Corp.,
in its capacity as Syndication Agent for the Lenders, executed a certain
Credit Agreement, which was amended by a certain First Consent Agreement
dated as of August 9, 1999, a certain First Amendment to Credit Agreement
dated as of September 3, 1999, a certain Second Consent and Modification
dated as of December 30, 1999, a certain Second Amendment to Credit
Agreement dated as of May 26, 2000 and a certain Third Amendment to Credit
Agreement dated as of October 31, 2000 (as so amended, collectively the
"Credit Agreement"), setting forth the terms of certain extensions of
credit to the Company; and
B. As of May 29, 1998, the Company executed and delivered to the
Administrative Agent, inter alia, promissory notes in favor of each Lender,
in the original aggregate principal sum of One Hundred Twenty Five Million
Dollars ($125,000,000.00), that were thereafter replaced by certain
replacement revolving notes, each dated May 26, 2000, in the aggregate
principal sum of One Hundred Fifty Million Dollars ($150,000,000.00)
(hereinafter collectively, the "Notes"); and
C. In connection with the Credit Agreement and the Notes, the Company
executed and delivered to the Administrative Agent certain other loan
documents, consents, assignments, agreements, and instruments in connection
with the indebtedness referred to in the Credit Agreement (all of the
foregoing, together with the Notes and the Credit Agreement, are
hereinafter collectively referred to as the "Loan Documents"); and
D. The Company has requested that the lenders and the administrative agent
amend and modify certain terms and covenants in the credit agreement to
extend additional credit to the Company and to modify certain financial and
other terms and covenants, and the lenders and the administrative agent are
willing to do so upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
promises contained herein, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereto for
themselves and their successors and assigns do hereby agree, represent and
warrant as follows:
1. Definitions. All capitalized terms not otherwise defined herein shall
have the meanings ascribed to such terms in the Credit Agreement.
2. Section 8.16," Ratio of Uncommitted Land Holdings to Consolidated
Tangible Net Worth," of the Credit Agreement is hereby amended to recite in its
entirely as follows:
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8.16 Ratio of Uncommitted Land Holdings to Consolidated Tangible Net
Worth.
The Company and its Subsidiaries shall maintain at all times a
ratio of Uncommitted Land Holdings to Consolidated Tangible Net Worth
of not greater than 2.00 to 1.00.
3. Section 8.22, "Further Real Estate Acquisition Limitations, New Market
Investment Amount," of the Credit Agreement is hereby amended to recite in its
entirety as follows.
8.22 "Further Real Estate Acquisition Limitations, New Market
Investment Amount."
The Company and its Subsidiaries shall not permit the Maximum New
Market Investment Amount to exceed the sum of $25,000,000.00
outstanding at any time, valued at cost; provided, however the
Company's total Investment or purchase of any Uncommitted Land
Holdings, Speculative Homes, Model Homes and all other real or
personal property constituting one or more "start up operations" or
other de novo entries in any markets outside Central Ohio or the
metropolitan Louisville, Kentucky area shall not exceed the aggregate
sum of $15,000,000.00 outstanding at any time, valued at cost. In
addition, the Company shall not build homes or develop real estate in
any locations or markets other than the State of Ohio or any
contiguous state.
4. The definitions of "Revolving Credit Commitments" and "Pro Rata Share"
in Section 14.3, "Defined Terms," of the Credit Agreement are hereby amended to
recite as follows:
"Revolving Credit Commitments" means the aggregate amount of the
Revolving Credit Commitments of all the Lenders, provided that the
maximum aggregate principal amount of Revolving Loans and stated
amount of Letters of Credit shall not exceed $175,000,000, as reduced
from time to time pursuant to the terms hereof.
"Pro Rata Share" means, with respect to any Lender, the
percentage obtained by dividing (a) the sum of such Lender's Revolving
Credit Commitment at such time by (b) the sum of the aggregate amount
of all Revolving Credit Commitments at such time; provided, however,
if all of the Revolving Credit Commitments are terminated pursuant to
the terms of this Agreement, then "Pro Rata Share" means the
percentage obtained by dividing (c) the sum of the aggregate amount of
such Lender's Revolving Credit Obligations by (d) the sum of the
aggregate amount of all Revolving Credit Obligations; provided,
further however, that in respect of all payments of principal and
interest on the following three Eurodollar Advances of the Company
existing as of the date of that certain Fourth Amendment to Credit
Agreement between and among the Company, the Lenders and
Administrative Agent dated as of May 23, 2001:
(i) Eurodollar Advance in the principal sum of $35 million maturing
June 18, 2001,
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(ii) Eurodollar Advance in the principal sum of $70 million
maturing July 12, 2001, and
(iii) Eurodollar Advance in the principal sum of $10 million
maturing October 1, 2001,
"Pro Rata Share" means the following respective percentages opposite
the name of each Lender set forth below:
(a) The Huntington National Bank 28%
(b) Bank One, Michigan 20%
(c) Key Bank National Association 18%
(d) National City Bank 14%
(e) Comerica Bank 10%
(f) FirStar Bank, N.A. 10%
The remainder of Section 14.3, "DEFINED TERMS," of the Loan Agreement
shall remain as originally written.
5. Conditions of Effectiveness. This Amendment shall become effective
as of May 23, 2001, upon satisfaction of all of the following conditions
precedent:
(a) The Administrative Agent shall have received seven duly executed copies
of the Fourth Amendment to Credit Agreement, the loan documents
referenced on Exhibit 5 (a) attached hereto, and such other
certificates, instruments, documents, agreements, and opinions of
counsel as may be required by the Administrative Agent, each of which
shall be in form and substance satisfactory to the Administrative Agent
and its counsel; and
(b) The Administrative Agent shall have received a fee in respect of this
Amendment in the amount of $54,500.00, which shall be shared according
to the schedule set forth below:
Bank One, Michigan $ 1,500
Comerica Bank $ 1,500
National City Bank $ 1,500
The Huntington National Bank $14,000
Key Bank NA $16,000
Firstar Bank NA $20,000
In addition, the Company shall have paid all other fees owing to the
Administrative Agent; and
(c) The representations contained in paragraph 6 below shall be true and
accurate in all respects.
6. Representations. The Company represents and warrants that after
giving effect to this Amendment (a) each and every one of the representations
and warranties made by or on behalf of the Company in the Credit Agreement or
the Loan Documents is true and correct in all respects on and as of the date
hereof, except to the extent that any of such representations and warranties
related, by the expressed terms thereof, solely to a date prior hereto; (b) the
Company has duly and properly performed, complied with and observed each of its
covenants, agreements and obligations contained in the Credit Agreement and Loan
Documents; and (c) no event has occurred or is continuing, and no condition
exists which would constitute an Event of Default or a Potential Default.
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7. Amendment to Credit Agreement. (a) Upon the effectiveness of this
Amendment, each reference in the Credit Agreement to "Credit Agreement,"
"Agreement," the prefix "herein," "hereof," or words of similar import, and each
reference in the Loan Documents to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as amended hereby. (b) Except as modified
herein, all of the representations, warranties, terms, covenants and conditions
of the Credit Agreement, the Loan Documents and all other agreements executed in
connection therewith shall remain as written originally and in full force and
effect in accordance with their respective terms, and nothing herein shall
affect, modify, limit or impair any of the rights and powers which the Lenders
and the Administrative Agent may have thereunder. The amendment set forth herein
shall be limited precisely as provided for herein, and shall not be deemed to be
a waiver of, amendment of, consent to or modification of any of the rights of
the Lenders or the Administrative Agent under or of any other term or provisions
of the Credit Agreement, any Loan Document, or other agreement executed in
connection therewith, or of any term or provision of any other instrument
referred to therein or herein or of any transaction or future action on the part
of the Company which would require the consent of the Lenders and the
Administrative Agent, including, without limitation, waivers of Events of
Default which may exist after giving effect hereto. The Company ratifies and
confirms each term, provision, condition and covenant set forth in the Credit
Agreement and the Loan Documents and acknowledges that the agreements set forth
therein continue to be legal, valid and binding agreements, and enforceable in
accordance with their respective terms.
8. Authority. The Company hereby represents and warrants to the
Administrative Agent and the Lenders that (a) the Company has legal power and
authority to execute and deliver the within Amendment; (b) the officer executing
the within Amendment on behalf of the Company has been duly authorized to
execute and deliver the same and bind the Company with respect to the provisions
provided for herein; (c) the execution and delivery hereof by the Company and
the performance and observance by the Company of the provisions hereof do not
violate or conflict with the articles of incorporation or code of regulations of
the Company or any law applicable to the Company or result in the breach of any
provision of or constitute a default under any agreement, instrument or document
binding upon or enforceable against the Company; and (d) this Amendment
constitutes a valid and legally binding obligation upon the Company in every
respect.
9. Counterparts. This Amendment may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be an
original, but all of which together shall constitute one and the same document.
Separate counterparts may be executed with the same effect as if all parties had
executed the same counterparts.
10. Costs and Expenses. The Company agrees to pay on demand in
accordance with the terms of the Credit Agreement all costs and expenses of the
Administrative Agent in connection with the preparation, reproduction, execution
and delivery of this Amendment and all other loan documents entered into in
connection herewith, including the reasonable fees and out-of-pocket expenses of
the Administrative Agent's counsel with respect thereto.
11. Governing Law. This Amendment shall be governed by and construed in
accordance with the law of the State of Ohio.
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IN WITNESS WHEREOF, the Company, the Lenders and the
Administrative Agent have hereunto set their hands as of the date first set
forth above.
THE COMPANY:
DOMINION HOMES, INC.
By: /s/ Peter J. O'Hanlon
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Its: Chief Financial Officer
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THE LENDERS:
THE HUNTINGTON NATIONAL BANK
By: /s/ William R. Remias
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Its: Vice President
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Revolving Credit Commitment: $49,000,000
BANK ONE, MICHIGAN f/k/a NBD BANK
By: /s/ Mary Jo Forte
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Its: First Vice President
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Revolving Credit Commitment: $30,000,000
KEYBANK NATIONAL ASSOCIATION
By: /s/ Robert L. Zelina
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Its: Vice President
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Revolving Credit Commitment: $35,000,000
NATIONAL CITY BANK
By: /s/ Steven A. Smith
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Its: Senior Vice President
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Revolving Credit Commitment: $21,000,000
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FIRSTAR BANK, N.A. f/k/a STAR BANK, N.A.
By: /s/ Marilyn K. Miller
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Its: Vice President
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Revolving Credit Commitment: $25,000,000
COMERICA BANK
By: /s/ Charles L. Weddell
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Its: Vice President
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Revolving Credit Commitment: $15,000,000
ADMINISTRATIVE AGENT:
THE HUNTINGTON NATIONAL BANK
By: /s/ William R. Remias
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Its: Vice President
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EXHIBIT 5 (a)
1. Corporate Resolution authorizing additional extension of Credit
2. Second Replacement Revolving Credit Note in favor of The Huntington
National Bank
3. Second Replacement Revolving Credit Note in favor of KeyBank National
Association
4. Second Replacement Revolving Credit Note in favor of Firstar Bank, N.A.
5. Replacement Subsidiary Guaranty
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