Exhibit 10.5
UNCONDITIONAL GUARANTY
December 6, 2006
Roberts Properties Residential,
L.P.
450 Northridge Parkway Suite 300
Atlanta, Georgia 30350
(Hereinafter referred to as “Borrower”)
Roberts Realty Investors,
Inc.
450 Northridge Parkway Suite 300
Atlanta, Georgia 30350
(Hereinafter referred to as “Guarantor”)
Wachovia Bank, National
Association
171 17th Street N.W.
Building 100
Mail Code 4506
Atlanta, Georgia 30363
(Hereinafter referred to as “Bank”)
To induce Bank to make, extend or
renew loans, advances, credit, or other financial accommodations to
or for the benefit of Borrower, which are and will be to the direct
interest and advantage of the Guarantor, and in consideration of
loans, advances, credit, or other financial accommodations made,
extended or renewed to or for the benefit of Borrower, which are
and will be to the direct interest and advantage of the Guarantor,
Guarantor hereby absolutely, irrevocably and unconditionally
guarantees to Bank and its successors, assigns and affiliates the
timely payment and performance of all liabilities and obligations
of Borrower to Bank and its affiliates, including, but not limited
to, all obligations under any notes, loan agreements, security
agreements, letters of credit, instruments, accounts receivable,
contracts, drafts, leases, chattel paper, indemnities, acceptances,
repurchase agreements, overdrafts, and the Loan Documents, as
defined below, and all obligations of Borrower to Bank or any of
its affiliates under any swap agreement (as defined in 11 U.S.C.
§ 101, as in effect from time to time), however and whenever
incurred or evidenced, whether primary, secondary, direct,
indirect, absolute, contingent, due or to become due, now existing
or hereafter contracted or acquired, and all modifications,
extensions and renewals thereof, (collectively, the
“Guaranteed Obligations”).
Guarantor further covenants and
agrees:
GUARANTOR’S
LIABILITY. This Guaranty
is a continuing and unconditional guaranty of payment and
performance and not of collection. The parties to this Guaranty are
jointly and severally obligated together with all other parties
obligated for the Guaranteed Obligations. This Guaranty does not
impose any obligation on Bank to extend or continue to extend
credit or otherwise deal with Borrower at any subsequent time. This
Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of the Guaranteed
Obligations is rescinded, avoided or for any other reason must be
returned by Bank, and the returned payment shall remain payable as
part of the Guaranteed Obligations, all as though such payment had
not been made. Except to the extent the provisions of this Guaranty
give Bank additional rights, this Guaranty shall not be deemed to
supersede or replace any other guaranties given to Bank by
Guarantor; and the obligations guaranteed hereby shall be in
addition to any other obligations guaranteed by Guarantor pursuant
to any other agreement of guaranty given to Bank and other
guaranties of the Guaranteed Obligations.
TERMINATION OF
GUARANTY. Guarantor may
terminate this Guaranty only by written notice, delivered
personally to or received by certified or registered United States
Mail by an authorized officer of
Bank at the address for notices
provided herein. Such termination shall be effective only with
respect to Guaranteed Obligations arising more than 15 days after
the date such written notice is received by said Bank officer. Such
termination shall not be effective with respect to Guaranteed
Obligations (including any subsequent extensions, modifications or
compromises of the Guaranteed Obligations) then existing, or
Guaranteed Obligations arising subsequent to receipt by Bank of
said notice if such Guaranteed Obligations are a result of
Bank’s obligation to make advances pursuant to a commitment,
or are based on Borrower’s obligations to make payments
pursuant to any swap agreement (as defined in 11 U.S.C. § 101,
as in effect from time to time), entered into prior to expiration
of the 15 day notice period, or are a result of advances which are
necessary for Bank to protect its collateral or otherwise preserve
its interests. Termination of this Guaranty by any single Guarantor
will not affect the existing and continuing obligations of any
other Guarantor hereunder.
CONSENT TO
MODIFICATIONS. Guarantor
consents and agrees that Bank (and, with respect to swap
obligations, its affiliates) may from time to time, in its sole
discretion, without affecting, impairing, lessening or releasing
the obligations of Guarantor hereunder: (a) extend or modify
the time, manner, place or terms of payment or performance and/or
otherwise change or modify the credit terms of the Guaranteed
Obligations; (b) increase, renew, or enter into a novation of the
Guaranteed Obligations; (c) waive or consent to the departure from
terms of the Guaranteed Obligations; (d) permit any change in the
business or other dealings and relations of Borrower or any other
guarantor with Bank; (e) proceed against, exchange, release,
realize upon, or otherwise deal with in any manner any collateral
that is or may be held by Bank in connection with the Guaranteed
Obligations or any liabilities or obligations of Guarantor; and (f)
proceed against, settle, release, or compromise with Borrower, any
insurance carrier, or any other person or entity liable as to any
part of the Guaranteed Obligations, and/or subordinate the payment
of any part of the Guaranteed Obligations to the payment of any
other obligations, which may at any time be due or owing to Bank;
all in such manner and upon such terms as Bank may deem
appropriate, and without notice to or further consent from
Guarantor. No invalidity, irregularity, discharge or
unenforceability of, or action or omission by Bank relating to any
part of the Guaranteed Obligations or any security therefor shall
affect or impair this Guaranty.
WAIVERS AND
ACKNOWLEDGMENTS. Guarantor waives and releases the
following rights, demands, and defenses Guarantor may have with
respect to Bank (and, with respect to swap obligations, its
affiliates) and collection of the Guaranteed Obligations: (a)
promptness and diligence in collection of any of the Guaranteed
Obligations from Borrower or any other person liable thereon, and
in foreclosure of any security interest and sale of any property
serving as collateral for the Guaranteed Obligations; (b) any law
or statute that requires that Bank (and, with respect to swap
obligations, its affiliates) make demand upon, assert claims
against, or collect from Borrower or other persons or entities,
foreclose any security interest, sell collateral, exhaust any
remedies, or take any other action against Borrower or other
persons or entities prior to making demand upon, collecting from or
taking action against Guarantor with respect to the Guaranteed
Obligations, including any such rights Guarantor might otherwise
have had under Va. Code §§ 49-25 and 49-26, et
seq. , N.C.G.S. §§ 26-7, et seq. , Tenn. Code
Ann. § 47-12-101, O.C.G.A. § 10-7-24, Mississippi
Code Ann. Section 87-5-1, California Civil Code §§ 2787
to 2855 inclusive, and any successor statute and any other
applicable law; (c) any law or statute that requires that Borrower
or any other person be joined in, notified of or made part of any
action against Guarantor; (d) that Bank or its affiliates preserve,
insure or perfect any security interest in collateral or sell or
dispose of collateral in a particular manner or at a particular
time, provided that Bank’s obligation to dispose of
Collateral in a commercially reasonable manner is not waived
hereby; (e) notice of extensions, modifications, renewals, or
novations of the Guaranteed Obligations, of any new transactions or
other relationships between Bank, Borrower and/or any guarantor,
and of changes in the financial condition of, ownership of, or
business structure of Borrower or any other guarantor; (f)
presentment, protest, notice of dishonor, notice of default, demand
for payment, notice of intention to accelerate maturity, notice of
acceleration of maturity, notice of sale, and all other notices of
any kind whatsoever to which Guarantor may be entitled; (g) the
right to assert against Bank or its affiliates any defense (legal
or equitable), set-off, counterclaim, or claim that Guarantor may
have at any time against Borrower or any other party liable to Bank
or its affiliates; (h) all defenses relating to invalidity,
insufficiency, unenforceability, enforcement,
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release or impairment of Bank or
its affiliates’ lien on any collateral, of the Loan
Documents, or of any other guaranties held by Bank; (i) any right
to which Guarantor is or may become entitled to be subrogated to
Bank or its affiliates’ rights against Borrower or to seek
contribution, reimbursement, indemnification, payment or the like,
or participation in any claim, right or remedy of Bank or its
affiliates against Borrower or any security which Bank or its
affiliates now has or hereafter acquires, until such time as the
Guaranteed Obligations have been fully satisfied beyond the
expiration of any applicable preference period; (j) any claim or
defense that acceleration of maturity of the Guaranteed Obligations
is stayed against Guarantor because of the stay of assertion or of
acceleration of claims against any other person or entity for any
reason including the bankruptcy or insolvency of that person or
entity; and (k) the right to marshalling of Borrower’s assets
or the benefit of any exemption claimed by Guarantor. Guarantor
acknowledges and represents that Guarantor has relied upon
Guarantor’s own due diligence in making an independent
appraisal of Borrower, Borrower’s business affairs and
financial condition, and any collateral; Guarantor will continue to
be responsible for making an independent appraisal of such matters;
and Guarantor has not relied upon Bank or its affiliates for
information regarding Borrower or any collateral.
FINANCIAL
CONDITION. Guarantor
warrants, represents and covenants to Bank and its affiliates that
on and after the date hereof: (a) the fair saleable value of
Guarantor’s assets exceeds its liabilities, Guarantor is
meeting its current liabilities as they mature, and Guarantor is
and shall remain solvent; (b) all financial statements of Guarantor
furnished to Bank are correct and accurately reflect the financial
condition of Guarantor as of the respective dates thereof; (c)
since the date of such financial statements, there has not occurred
a material adverse change in the financial condition of Guarantor;
(d) there are not now pending any court or administrative
proceedings or undischarged judgments against Guarantor, no federal
or state tax liens have been filed or threatened against Guarantor,
and Guarantor is not in default or claimed default under any
agreement; and (e) at such reasonable times as Bank requests,
Guarantor will furnish Bank and its affiliates with such other
financial information as Bank and its affiliates may reasonably
request.
INTEREST AND APPLICATION OF
PAYMENTS. Regardless of
any other provision of this Guaranty or other Loan Documents, if
for any reason the effecti