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,