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UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE

Guarantee Agreement

UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE | Document Parties: Roberts Realty Investors, Inc. | WACHOVIA BANK | ROBERTS PROPERTIES RESIDENTIAL, L.P You are currently viewing:
This Guarantee Agreement involves

Roberts Realty Investors, Inc. | WACHOVIA BANK | ROBERTS PROPERTIES RESIDENTIAL, L.P

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Title: UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
Governing Law: Georgia     Date: 1/5/2005
Industry: Real Estate Operations     Sector: Services

UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE, Parties: roberts realty investors  inc. , wachovia bank , roberts properties residential  l.p
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Exhibit 10.6

UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE

        FOR AND IN CONSIDERATION OF the sum of Ten and No/100ths Dollars ($10.00) and other good and valuable considerations paid or delivered to the undersigned, Roberts Realty Investors, Inc., a Georgia corporation (hereinafter referred to as “Guarantor”), the receipt and sufficiency whereof are hereby acknowledged by Guarantor, and for the purpose of seeking to induce WACHOVIA BANK, NATIONAL ASSOCIATION (hereinafter referred to as “Lender”), to extend credit to ROBERTS PROPERTIES RESIDENTIAL, L.P., a Georgia limited partnership (hereinafter referred to as “Borrower”), which extension of credit will be to the direct interest and advantage of Guarantor, Guarantor does hereby unconditionally guarantee to Lender and its successors, successors-in-title and assigns (a) the full and prompt payment when due, whether by acceleration or otherwise, with such interest as may accrue thereon, either before or after maturity thereof, of that certain Promissory Note of even date herewith, made by Borrower to the order of Lender in the principal face amount of TWENTY MILLION FOUR HUNDRED ELEVEN THOUSAND FIVE HUNDRED FIFTY AND NO/100THS DOLLARS ($20,411,550.00) (hereinafter referred to as the “Note”), together with any renewals, modifications, consolidations and extensions thereof; and (b) the full and prompt payment and performance of any and all other obligations of Borrower to Lender under the Note and any and all other documents or instruments now or hereafter evidencing, securing, guaranteeing, or otherwise relating to the indebtedness evidenced by the Note and all amendments and modifications thereto (the Note, such other documents and instruments, and all renewals, amendments, modifications, consolidations and extensions thereof are hereinafter referred to collectively as the “Loan Documents”). Guarantor does hereby agree that if the Note is not paid by Borrower in accordance with its terms, or if any and all sums which are now or may hereafter become due from Borrower to Lender under the Loan Documents are not paid by Borrower in accordance with their terms, Guarantor will immediately make such payments. Guarantor further agrees to pay Lender all expenses (including, without limitation, court costs and reasonable attorneys’ fees actually incurred) paid or incurred by Lender in endeavoring to collect the indebtedness evidenced by the Note and the Loan Documents, to enforce the obligations of Borrower guaranteed hereby, or any portion thereof, or to enforce this Guaranty.

        Guarantor hereby consents and agrees that Lender may at any time, and from time to time, without notice to or further consent from Guarantor, either with or without consideration, surrender any property or other security of any kind or nature whatsoever held by it or by any person, firm, trustee or corporation on its behalf or for its account, securing any indebtedness or liability hereby guaranteed; substitute for any collateral so held by it or by such person, firm, trustee or corporation, other collateral of like kind, or of any kind; modify the terms of the Note or any of the Loan Documents; extend or renew the Note for any period; grant releases, compromises and indulgences with respect to the Note or any of the Loan Documents, and to any persons or entities now or hereafter liable thereunder or hereunder; release any other guarantor or endorser of the Note or any other Loan Document; or take or fail to take any such action of any type whatsoever. No such action which Lender shall take or fail to take in connection with the Note or any of


the Loan Documents or any security for the payment of the indebtedness of Borrower to Lender or for the performance of any obligations or undertakings of Borrower, nor any course of dealing with Borrower or any other person, shall release Guarantor’s obligations hereunder, affect this Guaranty in any way or afford Guarantor any recourse against Lender. The provisions of this Guaranty shall extend and be applicable to all renewals, amendments, extensions, consolidations and modifications of the Note and the Loan Documents, or any of them, and any and all references herein to the Note or to any of the Loan Documents shall be deemed to include any such renewals, extensions, amendments, consolidations or modifications thereof.

        Guarantor hereby expressly waives any right of contribution from or indemnity against Borrower, whether at law or in equity, arising from any payments made by Guarantor pursuant to the terms of this Guaranty and Guarantor acknowledges that Guarantor has no right whatsoever to proceed against the Borrower for reimbursement of any such payment. In connection with the foregoing, Guarantor expressly waives any and all rights of subrogation to Lender against Borrower, and Guarantor hereby waives any rights to enforce any remedy which Lender may have against Borrower and any rights to participate in any collateral given to secure the indebtedness evidenced by the Note and other Loan Documents. Guarantor hereby subordinates any and all indebtedness of Borrower now or hereafter owed to Guarantor to all indebtedness of Borrower to Lender, and agrees with Lender that Guarantor shall not demand or accept any payment of principal or interest from Borrower, shall not claim any offset or other reduction of Guarantor’s obligations hereunder because of any such indebtedness, and shall not take any action to obtain any of the security described in and encumbered by the Loan Documents; provided, however, that, if Lender so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for Lender and be paid over to Lender on account of the indebtedness of Borrower to Lender, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty.

        Guarantor hereby subordinates any and all indebtedness of Borrower now or hereafter owed to Guarantor to all indebtedness of Borrower to Lender, and agrees with Lender that Guarantor shall not demand or accept any payment of principal or interest from Borrower, shall not claim any offset or other reduction of Guarantor’s obligations hereunder because of any such indebtedness, and shall not take any action to obtain any of the security described in and encumbered by the Loan Documents; provided, however, that, if Lender so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for Lender and be paid over to Lender on account of the indebtedness of Borrower to Lender, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty.

        Guarantor hereby waives and agrees not to assert or take advantage of (a) the defense of the statute of limitations in any action hereunder or for the collection of the indebtedness or the performance of any obligation hereby guaranteed; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of Guarantor or any other person or entity, or the failure of Lender to file or enforce a claim against the estate (either in administration, bankruptcy, or any other proceeding) of

 

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Borrower or any other person or entity; (c) any defense based on the failure of Lender to give notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of any other person whomsoever, in connection with any obligation hereby guaranteed; (d) any defense based upon an election of remedies by Lender which destroys or otherwise impairs any subrogation rights of Guarantor or the right of Guarantor to proceed against Borrower for reimbursement, or both; (e) any defense based upon failure of Lender to commence an action against Borrower; (f) any duty on the part of Lender to disclose to Guarantor any facts it may now or hereafter know regarding Borrower; (g) acceptance or notice of acceptance of this Guaranty by Lender; (h) notice of presentment and demand for payment of any of the indebtedness or performance of any of the obligations hereby guaranteed; (i) protest and notice of dishonor or of default to Guarantor or to any other party with respect to the indebtedness or performance of obligations hereby guaranteed; (j) any and all other notices whatsoever to which Guarantor might otherwise be entitled; (k) any defense based on lack of due diligence by Lender in collection, protection or realization upon any collateral securing the indebtedness evidenced by the Note, or by any of the other Loan Documents,


 
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