EXHIBIT 4.10
FORM OF OAKWOOD HOMES GUARANTY
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty"), dated as of __________,
_____, is made and entered into upon the terms hereinafter set forth, by and
between Oakwood Homes Corporation, a North Carolina corporation (the
"Guarantor"), and ________________________, a national banking association, as
trustee (the "Trustee") of OMI Trust ____-__ (the "Trust").
RECITALS:
a. The Trust was formed pursuant to a Pooling and Servicing Agreement,
dated as of __________ __, 19__, which incorporates by reference the Company's
Standard Terms to Pooling and Servicing Agreement (____________ Edition)
(together, the "Pooling and Servicing Agreement"), by and among Oakwood Mortgage
Investors, Inc. (the "Company"), Oakwood Acceptance Corporation (the "Servicer")
and the Trustee. Capitalized terms used and not otherwise defined herein shall
have the respective meanings assigned to such terms in the Pooling and Servicing
Agreement.
b. Under the Pooling and Servicing Agreement, the Trust issued its
Pass-Through Certificates, Series _____-__ (the "Certificates"), in ____
Classes, including the Class ___ Certificates (the "Guaranteed Certificates").
Under certain circumstances described in the Pooling and Servicing Agreement,
the Certificate Principal Balance of the Guaranteed Certificates may be written
down by the allocation of a Writedown Amount to the Guaranteed Certificates
(such a Writedown Amount being hereinafter referred to as a "Guaranteed
Writedown"). Also, under certain circumstances the Holders of the Guaranteed
Certificates may not receive the entire Interest Distribution Amount for the
Guaranteed Certificates on a Distribution Date (the difference between such
Interest Distribution Amount and the amount available for distribution of
interest on the Guaranteed Certificates on such Distribution Date being
hereinafter referred to as a "Guaranteed Interest Shortfall").
c. The Guarantor desires to execute and deliver this Guaranty to the
Trustee, and the Trustee, on behalf of the Holders of the Guaranteed
Certificates, desires to execute this Guaranty for the benefit of such Holders.
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:
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1. The Guarantor hereby guarantees to the Trustee, solely on behalf of
the Holders of the Guaranteed Certificates, the full payment of any Guaranteed
Writedown or Guaranteed Interest Shortfall for any Distribution Date to the
Trustee in immediately available funds at or before [12:00 noon Eastern Time] on
such Distribution Date, provided that the Trustee has notified the Guarantor in
writing (which may be by telecopy confirmed by a telephone call as described
below) of the amount of such Guaranteed Writedown or Guaranteed Interest
Shortfall (either, a "Guaranteed Amount") before the close of business on the
Remittance Date preceding the applicable Distribution Date. If the Trustee fails
to notify the Guarantor as provided in this paragraph of any Guaranteed Amount
(and the amount thereof) for any Distribution Date before the close of business
on the related Remittance Date, but subsequently so notifies the Guarantor, then
the Guarantor shall deliver such Guaranteed 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
____________________ (or such other person as may hereafter be prescribed by the
Guarantor to the Trustee in writing) to the telecopy number of (910) 664-____
(or such other telecopy number as may be hereafter prescribed by the Guarantor
to the Trustee in writing).
2. The Guarantor guarantees payment of Guaranteed Amounts to the
Trustee pursuant to the terms hereof only, and does not guarantee the Trustee's
obligation to distribute payments made by the Guarantor hereunder to the Holders
of the Guaranteed Certificates, 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.
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 of the Guaranteed Amounts.
4. The liability of the Guarantor hereunder shall in no way be affected
by (i) the release or discharge of the Company or the Trust in any creditors',
receivership, bankruptcy or other proceedings, (ii) the impairment, limitation
or modification of the liability of the Company or the Trust or the estate of
the Company or the Trust in bankruptcy, or of any remedy for the enforcement of
any of the Company's or the Trust'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 Company's or the Trust's obligations under the Pooling and
Servicing Agreement in any such proceedings, (iv) the assignment or transfer of
any of the Company's or the Trust's obligations under the Pooling and Servicing
Agreement by the Trustee or (v) the cessation from any cause whatsoever of the
liability of the Company or the Trust with respect to the Company's or the
Trust's obligations under the Pooling and Servicing Agreement.
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5. To the extent the Guarantor makes any payment to the Trustee
pursuant to this Guaranty in respect of any Guaranteed Amounts, the Guarantor
shall be fully subrogated to the rights of the Trustee or the Holders of the
Guaranteed Certificates to receive the amount of such payment from collections
in respect of the Assets. Until all of the covenants, terms and conditions of
the Company with respect to the Company's obligations under the Pooling and
Servicing Agreement are fully paid, performed, kept and/or observed, the
Guarantor agrees that any liability or indebtedness of the Company now or
hereafter held by the Guarantor, whether due to subrogation as provided in the
preceding sentence or otherwise, shall be subordinated to the obligations of the
Company to the Trustee under the Pooling and Servicing Agreement.
Without limiting the generality of the foregoing in the event that a
Carryover Interest Amount is distributable on the Guaranteed Certificates on a
Distribution Date, the Trustee shall remit such Carryover Interest Amount to the
Guarantor to the extent of the amount of any Guaranteed Interest Shortfall
previously paid by the Guarantor and unreimbursed to the Guarantor, plus
interest thereon at the Pass-Through Rate on the Guaranteed Certificates from
the date the Guarantor paid such Guaranteed Interest Shortfall. In the event
that a Writedown Amount or Writedown Interest Amount or Carryover Writedown
Interest Amount is distributable on the Guaranteed Certificates on a
Distribution Date, the Trustee shall remit such amount to the Guarantor to the
extent it relates to a Guaranteed Writedown that was previously paid by the
Guarantor but not reimbursed previously to the Guarantor.
6. This is a guaranty of payment and performance and not of collection.
The liability of the Guarantor hereunder shall be direct and immediate and not
conditional or contingent upon the pursuit of any remedies against the Company,
the Servicer or any other person, nor against any collateral available to the
Trustee. The Guarantor hereby waives any right to require that an action be
brought against the Company, the Servicer or any other person or to require that
resort be had to any collateral in favor of the Trustee prior to discharging its
obligations hereunder.
7. This Guaranty is assignable by the Trustee to any successor trustee
under the Pooling and Servicing Agreement, and any assignment of the Company'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 Guaranty 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.
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8. This Guaranty shall be construed in accordance with and governed by
the laws of the Commonwealth of Virginia 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.
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IN WITNESS WHEREOF, each of the undersigned has executed this Guaranty,
or has caused this Guaranty to be executed by its duly authorized
representative, as of the date first above written.
OAKWOOD HOMES CORPORATION
By: ____________________________
Title: ____________________
_____________________________, as
Trustee
By: ____________________________
Title: ____________________
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