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EXHIBIT 10.7
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FIRST CONSENT AGREEMENT
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THIS FIRST CONSENT AGREEMENT (this "Consent") is entered into as of the
9th day of August, 1999, by, between and among (a) the financial institutions
from time to time party hereto, as lenders (collectively the "Lenders" and
individually a "Lender"), (b) The Huntington National Bank ("Huntington"), as
Administrative Agent for the Lenders (Huntington with its successors in such
capacity, the "Administrative Agent"), and (c) Dominion Homes, Inc. (the
"Company").
RECITALS:
A. As of May 29, 1998, the Company, the Lenders, the Administrative
Agent and Huntington Capital Corp., in its capacity as Syndication Agent for the
Lenders (the "Syndication Agent") executed a certain Credit Agreement as
amended, modified and supplemented from time to time (as so amended, modified
and supplemented, 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
Lenders, inter alia, certain Revolving Credit Notes in the aggregate principal
sum of One Hundred Twenty Five Million Dollars ($125,000,000.00) ( 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, certificates, 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 "Credit Documents"); and
D. The Company has requested, with respect to its fiscal year ending
December 31, 1999, that the Required Lenders and the Administrative Agent,
pursuant to Section 13.4 of the Credit Agreement, consent to allow the Company
to redeem or purchase for fair market value up to $2,500,000 of its capital
common stock during its fiscal year ending December 31, 1999, and the Required
Lenders and the Administrative Agent are willing to provide such consent 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. This consent is provided pursuant to the terms of the
Credit Agreement, and all capitalized terms not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
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2. Notwithstanding the limitations set forth in Section 8.8 of the
Credit Agreement, "ACQUISITION OF CAPITAL STOCK," the Required Lenders and the
Administrative Agent, with respect to the Company's fiscal year ending December
31, 1999, hereby consent to the Company's redemption or purchase for fair market
value of up to $2,500,000 of its capital common stock during such fiscal year
ending December 31, 1999.
3. This Consent shall become effective as of August 9, 1999, upon
satisfaction of all of the following conditions precedent: the Administrative
Agent shall have received six duly executed copies of this Consent 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.
4. Except as modified herein, all of the representations, warranties,
terms, covenants and conditions of the Credit Agreement, the Credit 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 Administrative Agent, Syndication Agent or
the Lenders may have thereunder. The agreement 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
Administrative Agent, they Syndication Agent or the Lenders under or of any
other term or provisions of the Credit Agreement, any Credit 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
Administrative Agent, the Lenders, or the Syndication 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 Credit Documents and
acknowledges that the agreement set forth therein continue to be legal, valid
and binding agreements, and enforceable in accordance with their respective
terms.
5. The Company hereby represents and covenants that (a) no Event of
Default will exist upon execution of this Consent, and nothing in this Consent
shall be construed to waive, modify, or cure any default or Event of Default
that exists or may exist under the Credit Agreement or the Credit Documents; (b)
each and every one of the representations and warranties made in the Credit
Agreement or the Credit Documents executed and delivered to the Administrative
Agent and the Lenders is true and correct in all respects on and as of the date
hereof, except to the extent that any such representations and warranties
related, by the express terms thereof, solely to a date prior hereto; and (c)
the Company has duly and properly performed, complied with and observed each of
its covenants, agreements and obligations contained in the Credit Agreement and
the Credit Documents. The Company further acknowledges that the representations
and covenants contained herein are a material inducement to the Administrative
Agent and the Lenders, to execute and deliver this Consent. The Administrative
Agent, the Lenders, and the Syndication Agent reserve and retain all rights and
remedies available to it under the Credit Agreement, the Credit Documents, and
applicable law.
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6. This Consent 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.
7. This Consent shall be governed by and construed and enforced in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the Company, the Lenders set forth below,
and the Administrative Agent have hereunto set their hands as of the date first
set forth above.
THE COMPANY:
DOMINION HOMES, INC.
By: /s/ Terry E. George
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Its: Senior Vice President and Treasurer
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THE BANKS:
THE HUNTINGTON NATIONAL BANK
By: /s/ William R. Remias
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Its: Vice President
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NBD BANK
By: /s/ Steven Mahr
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Its: First Vice President
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KEYBANK NATIONAL ASSOCIATION
By: /s/ Robert Zelina
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Its: Vice President
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NATIONAL CITY BANK
By: /s/ Steven A. Smith
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Its: Vice President
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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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COMERICA BANK
By: /s/ Charles Weddell
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Its: Vice President
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ADMINISTRATIVE AGENT:
THE HUNTINGTON NATIONAL BANK
By: /s/ William R. Remias
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Its: Vice President
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