EXHIBIT 10.51
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT to Amended and Restated Credit Agreement (this
"Amendment") is entered into as of the 13th day of February, 2003, 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") as issuing bank and as a Lender, and Huntington in its separate
capacity as administrative agent for the Lenders and the issuing bank (with its
successors in such capacity, the "Administrative Agent").
RECITALS:
A. As of December 31, 2001, the Company, the Lenders, the
Administrative Agent, and Huntington, in its capacity as issuing bank, executed
a certain Amended and Restated Credit Agreement, which was amended by a certain
First Amendment to Amended and Restated Credit Agreement dated as of June 10,
2002, by a certain Consent Agreement dated as of August 29, 2002, and by a
certain Second Amendment to Amended and Restated Credit Agreement dated as of
December 31, 2002 (as so amended, and as amended, modified and supplemented from
time to time, collectively the "Credit Agreement"), setting forth the terms of
certain extensions of credit to the Company; and
B. As of December 31, 2001, the Company executed and delivered to the
Administrative Agent, inter alia, revolving credit notes in favor of the
Lenders, in the original aggregate principal sum of One Hundred Seventy Five
Million Dollars ($175,000,000) and a swing note in favor of Huntington in the
principal sum of $10,000,000, (hereinafter collectively, the "Notes"); and
C. In connection with the Credit Agreement and the Notes, the Company
and certain of its Subsidiaries executed and delivered to the Administrative
Agent a standby letter of credit reimbursement agreement, guaranty agreements,
certain other loan documents, consents, 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 Required Lenders and the
Administrative Agent amend and modify certain terms and covenants in the Credit
Agreement, and the Required 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 8.8, "Acquisition of Capital Stock," of the Credit
Agreement is hereby amended to recite in its entirely as follows:
8.8 Acquisition of Capital Stock.
The Company shall not redeem or acquire any of its
own capital stock or any options or other interests in respect
thereof having an aggregate value in excess of (i) $4,000,000 in
any fiscal year or (ii) $7,000,000 in the aggregate on and after
December 31, 2001; except (a) the purchase or redemption of
capital stock in connection with a simultaneous sale of an
equivalent or greater amount of capital stock for not less than
the same aggregate purchase or redemption price, or (b) up to the
aggregate amount of $1,000,000 in any fiscal year for the purchase
of capital stock, options or other interests in respect thereto
using funds escrowed pursuant to the Company's Amended and
Restated Executive Deferred Compensation Plan or otherwise
pursuant to any of the Company's management incentive plans. None
of the Subsidiaries shall redeem or acquire any of its own capital
stock..
3. Conditions of Effectiveness. All provisions of this Amendment
shall become effective as of February 13, 2003, upon satisfaction of all of the
following conditions precedent:
(a) The Administrative Agent shall have received nine duly executed
copies of this Amendment, 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 $87,500, which shall be shared by the Lenders on
a pro rata basis; and
(c) The representations contained in the immediately following
paragraph shall be true and accurate.
4. 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
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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.
5. 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.
6. 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.
7. 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.
8. Costs and Expenses. The Company agrees to pay on demand in
accordance with the terms of the Credit Agreement all reasonable 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
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reasonable fees and out-of-pocket expenses of the Administrative Agent's counsel
with respect thereto.
9. 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.
COMPANY:
DOMINION HOMES, INC.
By: /s/ Peter J. O'Hanlon
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Its: Senior Vice President/Chief Financial Officer
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ADMINISTRATIVE AGENT:
THE HUNTINGTON NATIONAL BANK
By: /s/ William R. Remias
--------------------------------
Its: Vice President
---------------------------------
LENDERS:
THE HUNTINGTON NATIONAL BANK,
as Lender and Issuing Bank
By: /s/ William R. Remias
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Its: Vice President
---------------------------------
BANK ONE, NATIONAL ASSOCIATION
By: /s/ David A. DeVictor
--------------------------------
Its: Vice President
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KEYBANK NATIONAL ASSOCIATION
By: /s/ Robert L. 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: Senior Vice President
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COMERICA BANK
By: /s/ Charles L. Weddell
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Its: Vice President
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U.S. BANK N.A. fka Firstar Bank, N.A.
By:
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Its:
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THE PROVIDENT BANK
By: /s/ Stephen S. Brooks
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Its: Senior Vice President
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FIFTH THIRD BANK (CENTRAL OHIO)
By: /s/ John K. Beardslee
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Its: Vice President
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CONSENT OF GUARANTORS
Each of the undersigned, being a guarantor of the Company's indebtedness
to the Agent and the Lenders pursuant to certain guaranty agreements in favor of
the Agent with the Bank, hereby consents and agrees to be bound by the terms,
conditions and execution of the above Amendment and hereby further agrees that
its obligations shall be continuing as provided in said guaranty agreements and
said guaranty agreements shall remain as written originally and continue in full
force and effect in all respects.
DOMINION HOMES OF KENTUCKY, LTD.
By: Dominion Homes of Kentucky GP, LLC,
its general partner
By: /s/ Peter J. O'Hanlon
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Its: Vice President/Treasurer
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DOMINION HOMES OF KENTUCKY GP, LLC
By: /s/ Peter J. O'Hanlon
-----------------------------------
Its: Vice President/Treasurer
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ALLIANCE TITLE AGENCY OF KENTUCKY, LLC
By: /s/ Peter J. O'Hanlon
-----------------------------------
Its: Vice President/Treasurer
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RESOLUTION PROPERTY COMPANY, LLC
By: /s/ Peter J. O'Hanlon
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Its: President
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DOMINION HOMES REALTY, LLC
By: /s/ Peter J. O'Hanlon
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Its: Vice President/Treasurer
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