EXHIBIT 10.3
CONSENT AGREEMENT
THIS CONSENT AGREEMENT (this "Consent") is entered into as of the 20th
day of August, 2002, 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, (as so amended, 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 desires to enter into a lease transaction of office space
that when added to existing lease obligations would violate the annual
limit on operating lease rentals set forth in Section 8.7, "Operating Lease
Rentals," of the Credit Agreement (the "Lease Transaction"); and
E. The Company has requested that the Required Lenders and the
Administrative Agent consent to the Lease Transaction and modify Section
8.7, "Operating Lease Rentals," of the Credit Agreement so that the Company
may enter into the Lease Transaction without violating Section 8.7 of 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. Notwithstanding Section 8.7, "Operating Lease Rentals," of the
Credit Agreement, the Required Lenders and the Administrative Agent hereby
consent to the Lease Transaction, during the period beginning August 15, 2002,
and continuing, through and including December 31, 2002, only.
3. Conditions of Effectiveness. All provisions of this Consent shall
become effective as of August 15, 2002, upon satisfaction of all of the
following conditions precedent:
(a) The Administrative Agent shall have received nine 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; and
(b) The representations contained in paragraph 4 below shall be true
and accurate in all respects.
4. Representations. The Company represents and warrants that after
giving effect to this Consent (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.
5. Amendment to Credit Agreement. (a) Upon the effectiveness of this
Consent, 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
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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
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 Consent
constitutes a valid and legally binding obligation upon the Company in every
respect.
7. Counterparts. 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.
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 Consent 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.
9. Governing Law. This Consent 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/ Xxxxx X. X'Xxxxxx
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Its: Senior Vice President/Chief Financial Officer
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ADMINISTRATIVE AGENT:
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
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Its: Vice President
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LENDERS:
THE HUNTINGTON NATIONAL BANK,
as Lender and Issuing Bank
By: /s/ Xxxxxxx X. Xxxxxx
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Its: Vice President
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BANK ONE, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. XxXxxxxx
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Its: Vice President
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XXXXXXX NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxx
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Its: Vice President
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NATIONAL CITY BANK
By: /s/ Xxxxxx X. Xxxxx
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Its: Senior Vice President
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COMERICA BANK
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: Vice President
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U.S. BANK N.A. fka Firstar Bank, N.A.
By: /s/ Xxxx Xxxxxxxxxx
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Its: Assistant Vice President
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THE PROVIDENT BANK
By: /s/ Xxxxxxx X. Xxxxxx
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Its: Senior Vice President
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FIFTH THIRD BANK (CENTRAL OHIO)
By: /s/ Xxxx X. Xxxxxxxxx
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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 Consent 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/ Xxxxx X. X'Xxxxxx
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Its: Vice President/Treasurer
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DOMINION HOMES OF KENTUCKY GP, LLC
By: /s/ Xxxxx X. X'Xxxxxx
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Its: Vice President/Treasurer
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ALLIANCE TITLE AGENCY OF KENTUCKY, LLC
By: /s/ Xxxxx X. X'Xxxxxx
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Its: Vice President/Treasurer
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RESOLUTION PROPERTY COMPANY, LLC
By: /s/ Xxxxx X. X'Xxxxxx
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Its: President
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DOMINION HOMES REALTY, LLC
By: /s/ Xxxxx X. X'Xxxxxx
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Its: Vice President/Treasurer
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