LIMITED GUARANTEE
THIS LIMITED GUARANTEE (this "Limited Guarantee"), dated as of November
1, 1997, is made and entered into upon the terms hereinafter set forth, by
OAKWOOD HOMES CORPORATION, a North Carolina corporation (the "Guarantor"), for
the benefit of PNC Bank, National Association, a national banking association,
as trustee (the "Trustee") of OMI Trust 1997-D (the "Trust").
RECITALS:
a. The Trust was formed pursuant to a Pooling and Servicing Agreement,
dated as of November 1, 1997, by and among Oakwood Mortgage Investors, Inc. (the
"Company"), Oakwood Acceptance Corporation (the "Servicer") and the Trustee,
which incorporates by reference the Company's Standard Terms to Pooling and
Servicing Agreement (November 1995 Edition) (together, the "Pooling and
Servicing Agreement"). Capitalized terms used and not otherwise defined herein
shall have the respective meanings assigned to such terms in the Pooling and
Servicing Agreement.
b. The Company is a wholly-owned subsidiary of the Servicer, which is a
wholly-owned subsidiary of the Guarantor.
c. Under the Pooling and Servicing Agreement, the Trust issued its
Pass-Through Certificates, Series 1997-D (the "Certificates"). In connection
with the issuance of the Certificates, the Guarantor has been requested to
provide to the Trustee this Limited Guarantee of certain shortfalls in
collections on the Assets included in the Trust. Because of the substantial
economic benefits accruing to the Guarantor by virtue of the issuance of the
Certificates, the Guarantor desires to make this Limited Guarantee, all on the
following terms and conditions.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged by the Guarantor, the Guarantor hereby agrees as follows:
I. The Guarantor hereby unconditionally and absolutely guarantees the
full and prompt payment to the Trustee on or prior to the Remittance Date
relating to each Distribution Date of the Limited Guarantee Payment Amount (as
such term is defined in the Pooling and Servicing Agreement), if any, for such
Distribution Date, provided that the Trustee or the Servicer has notified the
Guarantor in writing (which may be by telecopy confirmed by a telephone call as
described below) of such amount before 1:00 p.m. New York City time on the
Remittance Date preceding the applicable Distribution Date. If the Trustee or
Servicer fails to notify the Guarantor as provided in this paragraph of any
Limited Guarantee Payment Amount (and the amount thereof) for any Distribution
Date before 1:00 p.m. New York City time on the related Remittance Date, but
subsequently so notifies the Guarantor, then the Guarantor shall deliver such
Limited Guarantee Payment Amount to the Trustee in immediately available funds
as soon as practicable after its receipt of such notice. Notices sent to the
Guarantor by telecopy or telephone shall be sent to the attention of Treasurer
(or such other person as may hereafter be prescribed by the Guarantor to the
Trustee in writing) to the telecopy number of (000) 000-0000 (or such other
telecopy number as may be hereafter prescribed by the Guarantor to the Trustee
and Servicer in writing).
2. The Guarantor guarantees payment of the Limited Guarantee Payment
Amount, if any, to the Trustee pursuant to the terms hereof only, and does not
guarantee the Trustee's obligation to distribute payments made by the Guarantor
in accordance with the Pooling and Servicing Agreement, and the Guarantor shall
not be liable for any failure by the Trustee properly to distribute the amount
of any payments made by the Guarantor hereunder. Although this Limited Guarantee
is for the benefit of the Trustee on behalf of the Holders of the Class B-2
Certificates, this Limited Guarantee may not be enforced directly by the Holders
of the Class B-2 Certificates, but only by the Trustee on their behalf.
3. The obligations of the Guarantor hereunder shall not be released by
the Trustee's receipt, application or release of any security given for the
payment of any Limited Guarantee Payment Amounts.
4. The liability of the Guarantor hereunder shall in no way be affected
by (i) the release or discharge of the Trust in any creditors', receivership,
bankruptcy or other proceedings, (ii) the impairment, limitation or modification
of the liability of the Trust or the estate of the Trust in bankruptcy, or of
any remedy for the enforcement of any of the Trustee's obligations under the
Pooling and Servicing Agreement resulting from the operation of any present or
future provision of the federal bankruptcy law or any other statute or the
decision of any court, (iii) the rejection or disaffirmance of any instrument,
document or agreement evidencing any of the Trustee's obligations under the
Pooling and Servicing Agreement in any such proceedings, (iv) the assignment or
transfer of any of the Trustee's obligations under the Pooling and Servicing
Agreement by the Trustee or (v) the cessation from any cause whatsoever of the
liability of the Trustee with respect to the Trustee's obligations under the
Pooling and Servicing Agreement.
5. The Guarantor hereby waives any right to subrogation to the rights
of the Trustee; provided, however, that the Guarantor shall be entitled to be
reimbursed for Limited Guarantee Payment Amounts made under this Limited
Guarantee pursuant to the terms of the Pooling and Servicing Agreement.
6. This is a guaranty of payment and not of collection. The liability
of the Guarantor hereunder shall be direct and immediate and not conditional or
contingent upon the occurrence of any event except the occurrence on or before
the applicable Remittance Date of certain shortfalls in the collection of
principal or interest on the Assets
giving rise to the existence of a Limited Guarantee Payment Amount as of the
corresponding Distribution Date, as set forth more particularly in the Pooling
and Servicing Agreement. The Guarantor hereby waives any right to require that
an action be brought against any person prior to discharging its obligations
hereunder. The Guarantor also waives all of its rights, powers and benefits
under N.C.G.S. '26-7 through '26-9.
7. This Limited Guarantee is assignable by the Trustee to any successor
trustee under the Pooling and Servicing Agreement, and any assignment of the
Trustee's obligations under the Pooling and Servicing Agreement or any portion
thereof by the Trustee shall operate to vest in the assignee the rights and
powers of the Trustee hereunder to the extent of such assignment. This Limited
Guarantee shall be binding upon the Guarantor and the Guarantor's successors and
assigns, and shall inure to the benefit of the Trustee, its representatives,
successors, successors-in-title and assigns.
8. This Limited Guarantee shall be construed in accordance with and
governed by the laws of the State of North Carolina applicable to contracts to
be performed within said state. No amendment or modification hereof shall be
effective unless evidenced by a writing signed by the Guarantor and the Trustee.
When used herein, the singular shall include the plural, and vice versa, and the
use of any gender shall include all other genders, as appropriate.
IN WITNESS WHEREOF, the undersigned has executed this Limited
Guarantee, or has caused this Limited Guarantee to be executed by its duly
authorized representative, as of the date first above written.
OAKWOOD HOMES CORPORATION
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Senior Vice President
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Acknowledged:
PNC BANK, NATIONAL ASSOCIATION,
AS TRUSTEE
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
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Title: Trust Officer
