LENDER ASSUMPTION AGREEMENT
This LENDER ASSUMPTION AGREEMENT ("Assumption Agreement") is entered
into as of February 21, 2002 by THE CIT GROUP/BUSINESS CREDIT, INC. (the "New
Lender"). Reference is made to that certain Loan and Security Agreement dated as
of January 22, 2002 (as amended, restated, supplemented or otherwise modified
from time to time, the "Loan Agreement"), by and among Oakwood Homes
Corporation, a North Carolina corporation ("Parent"), Parent's subsidiaries
signatory thereto (together with Parent, each, an individual "Borrower" and
collectively, the "Borrowers"), the lenders signatory thereto (the "Lenders"),
and Foothill Capital Corporation, a California corporation with an office in
Atlanta, Georgia, in its capacity as Agent ("Agent"). Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to such terms
in the Loan Agreement.
1. In accordance with the terms and conditions of Section 14.3 of
the Loan Agreement, New Lender hereby joins the Loan Agreement as a "Lender" and
assumes all duties and obligations of a Lender under the Loan Documents as of
9:00 a.m. (Atlanta, Georgia time) on February 21, 2002 (the "Joinder Effective
Date") with a Commitment in the amount of $10,000,000 (the "Additional
Commitment"). In consideration of such assumption of duties and obligations, New
Lender shall be entitled to all of the rights and privileges of a Lender under
the Loan Agreement upon the Joinder Effective Date to the extent of the
Additional Commitment.
2. New Lender (a) confirms that it has received copies of the
Loan Agreement and the other Loan Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assumption Agreement; (b) agrees that it will,
independently and without reliance, as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents; (c) confirms that it is eligible as an Lender under the
terms of the Loan Agreement; (d) appoints and authorizes Agent to take such
action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; and (e) agrees that it will perform
in accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender thereunder.
3. Following the execution of this Assumption Agreement by New
Lender, it will be delivered to Agent for recording. The effective date of this
Assumption Agreement shall be the Joinder Effective Date. Agent hereby accepts
this Assumption Agreement.
4. As of the Joinder Effective Date, Agent shall make all
payments under the Loan Agreement and the other Loan Documents in respect of the
Additional Commitment (including, without limitation, all payments of principal
and interest with respect thereto) to New Lender in accordance with the
provisions of the Loan Agreement. Upon the Joinder Effective Date, New Lender
shall pay to Agent New Lender's Pro Rata Share (after taking into account the
Additional Commitment) of the principal amount of any outstanding loans under
the Loan Agreement and the other Loan Documents in an amount not to exceed the
Additional Commitment.
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5. As of the Joinder Effective Date and after Agent's receipt of
payment of such New Lender's Pro Rata Share of the outstanding loans under the
Loan Agreement, New Lender shall be entitled to fees for the benefit of the
Lenders as more particularly described in the Loan Agreement, in accordance with
such New Lender's Pro Rata Share of the Commitments thereunder after giving
effect to this Assumption Agreement, including (a) the Applicable Prepayment
Premium, if any, as set forth in Section 3.6 of the Loan Agreement; (b) the
Letter of Credit fees as set forth in Section 2.6(b) of the Loan Agreement; and
(c) the unused line fee as set forth in Section 2.11(a) of the Loan Agreement.
6. In addition to the Fees described in Section 6, on the Joinder
Effective Date, Agent shall pay New Lender the fees described in that certain
Fee Letter of even date herewith by and between Agent and New Lender.
7. New Lender specifically acknowledges that it shall not be
entitled to any fees described in the Fee Letter dated as of January 22, 2002 by
and among Borrowers and Agent, referred to in Section 2.11(c) of the Loan
Agreement, and New Lender agrees that such fees shall be for the sole account of
Agent.
8. Notwithstanding anything to the contrary contained in the Loan
Agreement or this Assumption Agreement, in no event shall Foothill, in its
capacity as Lender, assign or sell a participating interest in any of its
Commitment if the effect of such sale or assignment would result in Foothill
owning and controlling, both beneficially and legally, less than the amount of
the Commitment owned and controlled, both beneficially and legally, by New
Lender; provided, however, that the foregoing restriction shall not apply in the
event of any assignment made in connection with the merger, consolidation, sale,
transfer or other disposition of all or any portion of the business or loan
portfolio of Foothill.
9. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA WITHOUT GIVING
EFFECT TO CONFLICTS OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION.
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IN WITNESS WHEREOF, New Lender has caused this Assumption Agreement to
be executed and delivered by its respective officers thereunto duly authorized
as of the Joinder Effective Date.
THE CIT GROUP/BUSINESS CREDIT, INC.,
as New Lender
By: /s/ Bruce Rhodes
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Name: Bruce Rhodes
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Title: Vice President
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ACKNOWLEDGED AND CONSENTED TO
THIS 21 DAY OF
February, 2002
FOOTHILL CAPITAL CORPORATION,
AS AGENT AND LENDER
By: /s/ Kathy Plisko
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Title: Senior Vice President
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