EXAMINED AND
COMPREHENDS THE REPURCHASE AGREEMENT IN ITS ENTIRETY.
(B)
GUARANTOR REPRESENTS, WARRANTS AND COVENANTS
TO MLMCI THAT AS OF THE DATE OF THIS GUARANTY, AS OF THE DATE OF ANY TRANSACTION
UNDER THE REPURCHASE AGREEMENT AND AT ALL TIMES WHILE THIS GUARANTY AND ANY
TRANSACTION UNDER THE REPURCHASE AGREEMENT ARE IN EFFECT OR THERE ARE
OBLIGATIONS OUTSTANDING:
(I)
PERFORMANCE OF GUARANTY.
GUARANTOR DOES
NOT BELIEVE, NOR DOES IT HAVE ANY REASON OR CAUSE TO BELIEVE, THAT IT CANNOT
PERFORM EACH AND EVERY COVENANT CONTAINED IN THIS GUARANTY ON ITS PART TO BE
PERFORMED.
(II)
GUARANTOR NOT INSOLVENT.
GUARANTOR IS
NOT, AND WITH THE PASSAGE OF TIME DOES NOT EXPECT TO BECOME, INSOLVENT.
(III)
OWNERSHIP OF SELLER.
GUARANTOR IS NOW, AND
WILL REMAIN, THE DIRECT OR INDIRECT OWNER OF 100% OF THE MEMBERSHIP INTERESTS OF
THE SELLER.
(IV)
OWNERSHIP OF AFFILIATE GUARANTOR.
GUARANTOR
IS NOW, AND WILL REMAIN, THE DIRECT OR INDIRECT OWNER OF 100% OF THE COMMON
STOCK OF THE AFFILIATE GUARANTOR.
11.
COVENANTS.
GUARANTOR COVENANTS AND AGREES
AS FOLLOWS:
(A)
CONSOLIDATIONS, MERGERS AND SALES OF
ASSETS.
THE GUARANTOR SHALL NOT (I) CONSOLIDATE WITH OR MERGE WITH OR INTO ANY
OTHER PERSON OR (II) SELL, LEASE OR OTHERWISE TRANSFER ALL OR SUBSTANTIALLY ALL
OF ITS ASSETS TO ANY OTHER PERSON; PROVIDED, THE GUARANTOR MAY MERGE OR
CONSOLIDATE WITH ANOTHER PERSON IF THE GUARANTOR IS THE PERSON SURVIVING SUCH
MERGER.
7
(B)
GUARANTEES.
THE GUARANTOR SHALL NOT CREATE,
INCUR, ASSUME OR SUFFER TO EXIST ANY GUARANTEES OTHER THAN THIS GUARANTY EXCEPT
(I) TO THE EXTENT REFLECTED IN THE GUARANTOR'S FINANCIAL STATEMENTS OR NOTES
THERETO; (II) TO THE EXTENT THE AGGREGATE GUARANTEES OF THE GUARANTOR (OTHER
THAN THOSE MADE PURSUANT TO CLAUSES (III), (IV) AND (V) BELOW) DO NOT EXCEED
$5,000,000; (III) OF OBLIGATIONS OF THE AFFILIATE GUARANTOR TO TEXTRON FINANCIAL
CORPORATION ("TEXTRON") ARISING IN CONNECTION WITH LOANS TO THE AFFILIATE
GUARANTOR FROM TEXTRON IN AN AGGREGATE AMOUNT OF $ 50,000,000 AT ANY TIME, (IV)
THE GUARANTY TO TEXTRON WITH RESPECT TO THAT CERTAIN $25,000,000 AGREEMENT FOR
WHOLESALE FINANCING FROM TEXTRON TO ARC HOUSING LLC AND ARC HOUSINGTX LP DATED
FEBRUARY 18, 2005; AND (V) THE GUARANTY TO THE BUYER UNDER THAT CERTAIN LEASE
RECEIVABLES FACILITY PROVIDED, HOWEVER, THAT FOR THE PURPOSES OF THIS CLAUSE (B)
ONLY THE TERM "GUARANTEES" SHALL EXCLUDE GUARANTEES ARISING PURSUANT TO
CUSTOMARY CARVE-OUTS TO LIMITED RECOURSE DEBT SUCH AS, FOR EXAMPLE, PERSONAL
RECOURSE TO THE GUARANTOR OR ANY SUBSIDIARY OF THE GUARANTOR FOR FRAUD, WILLFUL
MISREPRESENTATION, MISAPPLICATION OR MISAPPROPRIATION OF CASH, WASTE,
ENVIRONMENTAL CLAIMS, DAMAGE TO PROPERTIES, NON-PAYMENT OF TAXES OR OTHER LIENS
DESPITE THE EXISTENCE OF SUFFICIENT CASH FLOW, INTERFERENCE WITH THE ENFORCEMENT
OF LOAN DOCUMENTS UPON MATURITY OR ACCELERATION, VIOLATION OF LOAN DOCUMENT
PROHIBITIONS AGAINST VOLUNTARY OR INVOLUNTARY BANKRUPTCY FILINGS, TRANSFER OF
PROPERTIES OR OWNERSHIP INTERESTS THEREIN AND LIABILITIES AND OTHER
CIRCUMSTANCES CUSTOMARILY EXCLUDED BY LENDERS FROM EXCULPATION PROVISIONS AND/OR
INCLUDED IN SEPARATE INDEMNIFICATION AGREEMENTS IN NON-RECOURSE FINANCINGS OF
REAL ESTATE.
(C)
MINIMUM TANGIBLE NET WORTH.
AS OF THE LAST
DAY OF EACH