GUARANTY

 

 

                                    GUARANTY

 

                             [Winthrop Realty Trust]

 

      GUARANTY, dated as of December 16, 2005 (the "Guaranty"), by WINTHROP

REALTY TRUST, an Ohio business trust (the "Guarantor"), in favor of KEYBANK

NATIONAL ASSOCIATION, a national banking association having an address at 225

Franklin Street 18th Floor, Boston, Massachusetts 02110, as agent (KeyBank

National Association, in such capacity as agent, hereinafter referred to as

"Agent") for a syndicate of lenders (singly and collectively, the "Lenders") as

specifically provided in the Loan Agreement (as defined below).

 

                             INTRODUCTORY STATEMENT

 

      WHEREAS, pursuant to that certain Loan Agreement dated as of December 16,

2005 (as amended, supplemented or otherwise modified from time to time, the

"Loan Agreement") entered into by and among WRT REALTY L.P., a Delaware limited

partnership (the "Borrower"), the Agent, and the Lenders, the Agent and the

Lenders have agreed to make a loan to the Borrower in the aggregate principal

amount of up to $100,000,000.00 (the "Loan"), upon the terms and subject to the

conditions set forth therein.

 

      WHEREAS, the Guarantor is the general partner of the Borrower, and the

lending of money and other extensions of the Obligations by the Agent and the

Lenders to the Borrower will enhance and benefit the business activities and

interests of the Guarantor.

 

      WHEREAS, as a condition to making the Loans, the Agent and the Lenders

have required the Guarantor to execute and deliver this Guaranty, guaranteeing

the payment and performance of all Obligations arising under or pursuant to the

Loan Agreement.

 

      NOW THEREFORE, in consideration of the premises and in order to induce the

Agent and the Lenders to make the Loans and extend other financial

accommodations under the Loan Agreement, the Guarantor hereby agrees as follows:

 

      Section 1. Guaranty. The Guarantor hereby irrevocably and unconditionally

guarantees the punctual payment when due, whether at stated maturity, after

maturity, by acceleration or otherwise, and the punctual performance, of all

present and future Obligations under the Loan Agreement and each other Loan

Document, each as the same may be hereafter amended, modified, extended, renewed

or recast, including but not limited to the payment of $100,000,000.00, together

with interest and other charges thereon, as provided in the Loan Agreement and

the Note executed thereunder (the foregoing being herein referred to as the

"Guaranteed Obligations").

 

      Section 2. Waiver. The Guarantor hereby absolutely, unconditionally and

irrevocably waives, to the fullest extent permitted by law, (a) promptness,

diligence, notice of acceptance and any other notice with respect to this

Guaranty, (b) presentment, demand of payment, protest, notice of dishonor or

nonpayment and any other notice with respect to the Guaranteed Obligations, (c)

any requirement that the Agent protect, secure, perfect or insure any security

interest or Lien on any property subject thereto or exhaust any right or take

 

 

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any action against the Borrower or any other Person or any collateral (other

than Collateral pledged by the Borrower to the Agent, for its own benefit and

the benefit of the other Lenders, pursuant to the Security Documents), (d) any

and all right to assert any defense (other than the defense of indefeasible

payment), set-off, counterclaim or cross-claim of any nature whatsoever with

respect to this Guaranty (except as otherwise provided in Section 20(a)(iii)

hereof), the obligations of the Guarantor hereunder or the obligations of any

other person or party relating to this Guaranty or the obligations of the

Guarantor hereunder or otherwise with respect to the Guaranteed Obligations in

any action or proceeding brought by the Agent to collect the Guaranteed

Obligations or any portion thereof or to enforce the obligations of the

Guarantor under this Guaranty, and (e) any other action, event or precondition

to the enforcement of this Guaranty or the performance by the Guarantor of the

obligations hereunder.

 

      Section 3. Guaranty Absolute.

 

            (a) The Guarantor guarantees that, to the fullest extent permitted

      by law, the Guaranteed Obligations will be paid or performed strictly in

      accordance with their terms, regardless of any law, regulation or order

      now or hereafter in effect in any jurisdiction affecting any of such terms

      or the rights of the Agent with respect thereto.

 

             (b) No invalidity, irregularity, voidability, voidness or

      unenforceability of the Loan Agreement, the Note, or any other Loan

      Document or any other agreement or instrument relating thereto, or of all

      or any part of the Guaranteed Obligations or of any security therefor

      shall affect, impair or be a defense to this Guaranty.

 

            (c) This Guaranty is one of payment and performance, not collection,

      and the obligations of the Guarantor under this Guaranty are independent

      of the Guaranteed Obligations, and a separate action or actions may be

      brought and prosecuted against the Guarantor to enforce this Guaranty,

      irrespective of whether any action is brought against the Borrower or any

      Affiliate or Subsidiary thereof or whether the Borrower or any Affiliate

      or Subsidiary thereof is joined in any such action or actions.

 

            (d) The liability of the Guarantor under this Guaranty shall be

      absolute and unconditional irrespective of:

 

                  (i) any change in the manner, place or terms of payment or

      performance, and/or any change or extension of the time of payment or

      performance of, renewal or alteration of, any Guaranteed Obligation, any

      security therefor, or any liability incurred directly or indirectly in

      respect thereof, or any other amendment or waiver of or any consent to

      departure from the Loan Agreement or the Note or any other Loan Document,

      including any increase in the Guaranteed Obligations resulting from the

      extension of additional credit to the Borrower or any Subsidiary or

      Affiliate thereof or otherwise;

 

 

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                  (ii) any sale, exchange, release, surrender, realization upon

      any property by whomsoever at any time pledged or mortgaged to secure, or

      howsoever securing, all or any of the Guaranteed Obligations (other than

      the Collateral pledged to the Agent, for its own benefit and the benefit

      of the other Lenders, under the Security Documents), and/or any offset

      against such Guaranteed Obligations, or failure to perfect, or continue

      the perfection of, any Lien in any such property, or delay in the

      perfection of any such Lien, or any amendment or waiver of or consent to

      departure from any other guaranty for all or any of the Guaranteed

      Obligations;

 

                  (iii) any exercise or failure to exercise any rights against

      the Borrower or any Affiliate or Subsidiary thereof or others (including

      the Guarantor);

 

                  (iv) any settlement or compromise of any Guaranteed

      Obligation, any security therefor or any liability (including any of those

      hereunder) incurred directly or indirectly in respect thereof or hereof;

 

                  (v) any manner of application of Collateral, or proceeds

      thereof, to all or any of the Guaranteed Obligations, or any manner of

      sale or other disposition of any Collateral for all or any of the

      Guaranteed Obligations or any other assets of the Borrower or any

      Affiliate or Subsidiary thereof;

 

                  (vi) any change, restructuring or termination of the existence

      of the Borrower or any Affiliate or Subsidiary thereof;

 

                  (vii) the release of the Borrower or any other party, other

      than the Guarantor, now or hereafter liable upon or in respect of the Loan

      Documents; or

 

                  (viii) any other agreements or circumstance of any nature

      whatsoever which might otherwise constitute a defense available to, or a

      discharge of, this Guaranty and/or the obligations of the Guarantor

      hereunder, or a defense to, or discharge of, the Borrower or any Affiliate

       or Subsidiary thereof relating to this Guaranty or the obligations of the

      Guarantor hereunder or otherwise with respect to the Loan or other

      financial accommodations to the Borrower (other than the defense of

      indefeasible payment).

 

             (e) The Agent may at any time and from time to time (whether or not

      after revocation or termination of this Guaranty) without the consent of,

      or notice (except as shall be required by applicable statute and cannot be

      waived) to, the Guarantor, and without incurring responsibility to the

      Guarantor or impairing or releasing the obligations of the Guarantor

      hereunder, apply any sums by whomsoever paid or howsoever realized to any

      Guaranteed Obligation regardless of what Guaranteed Obligations remain

      unpaid.

 

 

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            (f) This Guaranty shall continue to be effective or be reinstated,

      as the case may be, if a claim is ever made upon the Agent for repayment

      or recovery of any amount or amounts received by the Agent in payment or

      on account of any of the Guaranteed Obligations as a result of laws

      relating to preferences, fraudulent transfers and fraudulent conveyances,

      and the Agent repays all or part of said amount by reason of any judgment,

      decree or order of any court or administrative body having jurisdiction

      over the Agent or its property, or any settlement or compromise of any

      such claim effected by the Agent with any such claimant (including the

      Borrower). In such event the Guarantor agrees that any such judgment,

      decree, order, settlement or compromis