ex10-2



 



Exhibit 10.2



GUARANTY



         GUARANTY (as the same may be amended, supplemented or otherwise modified
from time to time, this “Guaranty”), dated as of March 1, 2002, by and among
each of the Subsidiaries listed on Schedule I hereto (collectively, the
“Subsidiary Guarantors”) and FLEET NATIONAL BANK, as administrative agent (in
such capacity, the “Administrative Agent”) on behalf of the Lenders under and
as defined in the Loan Agreement (hereinafter defined).


RECITALS



         I.        Reference is made to the Term Loan Agreement, dated as of March 1,
2002, by and among New Plan Excel Realty Trust, Inc., a Maryland corporation,
the Lenders party thereto, and the Administrative Agent (as the same may be
amended, supplemented or otherwise modified from time to time, the “Loan
Agreement”).


         II.       The Administrative Agent and the Lenders have made it a condition
precedent to the effectiveness of the Loan Agreement that each Subsidiary
Guarantor execute and deliver this Guaranty.


         III.      Each Subsidiary Guarantor expects to derive substantial benefit from
the Loan Agreement and the transactions contemplated thereby and, in
furtherance thereof, has agreed to execute and deliver this Guaranty.


         Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the Subsidiary Guarantors
and the Administrative Agent hereby agree as follows:



	 	1.	 	Defined Terms



                     (a)         Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Loan Agreement.



                     (b)         When used in this Guaranty, the following capitalized terms shall have
the respective meanings ascribed thereto as follows:



         “Borrower Obligations” means all present and future obligations and
liabilities, whether deemed principal, interest, additional interest, fees,
expenses or otherwise of the Borrower to the Administrative Agent and the
Lenders, including, without limitation, all obligations under (i) the Loan
Agreement, (ii) the Notes and (iii) all other Loan Documents.


         “Guarantor Obligations” means, with respect to each Subsidiary Guarantor,
all of the obligations and liabilities of such Subsidiary Guarantor hereunder,
whether fixed, contingent, now existing or hereafter arising, created, assumed,
incurred or acquired.



	 	2.	 	Guarantee



                     (a)         Subject to Section 2(b), each Subsidiary Guarantor hereby absolutely,
irrevocably and unconditionally guarantees the full and prompt payment when due
(whether at



 







 





stated maturity, by acceleration or otherwise) of the Borrower
Obligations. The agreements of each Subsidiary Guarantor in this Guaranty
constitute a guarantee of payment, and no Credit Party shall have any
obligation to enforce any Loan Document or exercise any right or remedy with
respect to any collateral security thereunder by any action, including making
or perfecting any claim against any Person or any collateral security for any
of the Borrower Obligations prior to being entitled to the benefits of this
Guaranty. The Administrative Agent may, at its option, proceed against the
Subsidiary Guarantors, or any one or more of them, in the first instance, to
enforce the Guarantor Obligations without first proceeding against the Borrower
or any other Person, and without first resorting to any other rights or
remedies, as the Administrative Agent may deem advisable. In furtherance
hereof, if any Credit Party is prevented by law from collecting or otherwise
hindered from collecting or otherwise enforcing any Borrower Obligation in
accordance with its terms, such Credit Party shall be entitled to receive
hereunder from the Subsidiary Guarantors after demand therefor, the sums which
would have been otherwise due had such collection or enforcement not been
prevented or hindered.


                     (b)         Notwithstanding anything to the contrary contained herein, the maximum
aggregate amount of the obligations of each Subsidiary Guarantor hereunder
shall not, as of any date of determination, exceed the lesser of the greatest
amount that is valid and enforceable against such Subsidiary Guarantor under
principles of New York State contract law and the greatest amount that would
not render such Subsidiary Guarantor’s liability hereunder subject to avoidance
as a fraudulent transfer or conveyance under Section 548 of Title 11 of the
United States Code or any provisions of applicable state law (collectively, the
“Fraudulent Transfer Laws”), in each case after giving effect to all other
liabilities of such Subsidiary Guarantor, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws (specifically excluding, however,
any liability (A) in respect of intercompany indebtedness to the Borrower or
any Affiliate or Subsidiary of the Borrower, to the extent that such
intercompany indebtedness would be discharged to the extent payment is made by
such Subsidiary Guarantor hereunder, and (B) under any guarantee of (1) senior
unsecured indebtedness or (2) indebtedness subordinated in right of payment to
any Borrower Obligation, in either case which contains a limitation as to
maximum liability similar to that set forth in this Section 2(b) and pursuant
to which the liability of such Subsidiary Guarantor hereunder is included in
the liabilities taken into account in determining such maximum liability) and
after giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights of such Subsidiary
Guarantor pursuant to applicable law or any agreement providing for an
equitable allocation among such Subsidiary Guarantor and other Affiliates or
Subsidiaries of the Borrower of obligations arising under guarantees by such
parties.



                     (c)         Each Subsidiary Guarantor agrees that the Guarantor Obligations may at
any time and from time to time exceed the maximum aggregate amount of the
obligations of such Subsidiary Guarantor hereunder without impairing this
Guaranty or affecting the rights and remedies of any Credit Party hereunder.




	 	3.	 	Absolute Obligation



         No Subsidiary Guarantor shall be released from liability hereunder unless
and until the Commitments of the Lenders have terminated and either (i) the
Borrower shall have paid in full the outstanding principal balance of the
Loans, together with all accrued and unpaid interest


 







 




 thereon, and all other amounts then due and owing under the Loan
Documents, or (ii) the Guarantor Obligations of such Subsidiary Guarantor shall
have been paid in full in cash. Each Subsidiary Guarantor acknowledges and
agrees that (a) no Credit Party has made any representation or warranty to such
Subsidiary Guarantor with respect to the Borrower, any of its Subsidiaries, any
Loan Document, or any agreement, instrument or document executed or delivered
in connection therewith, or any other matter whatsoever, and (b) such
Subsidiary Guarantor shall be liable hereunder, and such liability shall not be
affected or impaired, irrespective of (A) the validity or enforceability of any
Loan Document, or any agreement, instrument or document executed or delivered
in connection therewith, or the collectability of any of the Borrower
Obligations, (B) the preference or priority ranking with respect to any of the
Borrower Obligations, (C) the existence, validity, enforceability or perfection
of any security interest or collateral security under any Loan Document, or the
release, exchange, substitution or loss or impairment of any such security
interest or collateral security, (D) any failure, delay, neglect or omission by
any Credit Party to realize upon or protect any direct or indirect collateral
security, indebtedness, liability or obligation, any Loan Document, or any
agreement, instrument or document executed or delivered in connection
therewith, or any of the Borrower Obligations, (E) the existence or exercise of
any right of set-off by any Credit Party, (F) the existence, validity or
enforceability of any other guarantee with respect to any of the Borrower
Obligations, the liability of any other Person in respect of any of the
Borrower Obligations, or the release of any such Person or any other guarantor
of any of the Borrower Obligations, (G) any act or omission of any Credit Party
in connection with the administration of any Loan Document or any of the
Borrower Obligations, (H) the bankruptcy, insolvency, reorganization or
receivership of, or any other proceeding for the relief of debtors commenced by
or against, any Person, (I) the disaffirmance or rejection, or the purported
disaffirmance or purported rejection, of any of the Borrower Obligations, any
Loan Document, or any agreement, instrument or document executed or delivered
in connection therewith, in any bankruptcy, insolvency, reorganization or
receivership, or any other proceeding for the relief of debtor, relating to any
Person, (J) any law, regulation or decree now or hereafter in effect which
might in any manner affect any of the terms or provisions of any Loan Document,
or any agreement, instrument or document executed or delivered in connection
therewith or any of the Borrower Obligations, or which might cause or permit to
be invoked any alteration in the time, amount, manner or payment or performance
of any of the Borrower’s obligations and liabilities (including the Borrower
Obligations), (K) the merger or consolidation of the Borrower into or with any
Person, (L) the sale by the Borrower of all or any part of its assets, (M) the
fact that at any time and from time to time none of the Borrower Obligations
may be outstanding or owing to any Credit Party, (N) any amendment or
modification of, or supplement to, any Loan Document, or (O) any other reason
or circumstance which might otherwise constitute a defense available to or a
discharge of the Borrower in respect of its obligations or liabilities
(including the Borrower Obligations) or of such Subsidiary Guarantor in respect
of any of the Guarantor Obligations (other than by the performance in full
thereof).



	 	4.	 	Representations and Warranties



                     (a)         Each of the Subsidiary Guarantors represents and warrants as to itself
that all representations and warranties relating to it contained in the Loan
Agreement are true and correct.



 







 





                     (b)         Each of the Subsidiary Guarantors represents and warrants as to itself
that it has full legal power and authority to enter into, execute, deliver and
perform the terms of this Guaranty, all of which have been duly authorized by
all proper and necessary corporate or trust action.



                     (c)         Each of the Subsidiary Guarantors represents and warrants as to itself
that this Guaranty constitutes the valid and legally binding obligations of
such Subsidiary Guarantor, and is enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, or other similar laws affecting the enforcement of
creditors’ rights generally; and that the execution, delivery and performance
by such Subsidiary Guarantor of this Guaranty does not violate the provisions
of any applicable statute, law, rule or regulation of any Governmental
Authority.



                     (d)         Each of the Subsidiary Guarantors represents and warrants as to itself
that no consent, authorization or approval of, filing with, notice to, or
exemption by, stockholders, any Governmental Authority or any other Person not
obtained is required to be obtained by such Subsidiary Guarantor to authorize,
or is required in connection with, the execution, delivery and performance of
this Guaranty or is required to be obtained by such Subsidiary Guarantor as a
condition to the validity or enforceability of this Guaranty.




	 	5.	 	Notices



         Except as otherwise specifically provided herein, all notices, requests,
consents, demands, waivers and other communications hereunder shall be in
writing (including facsimile) and shall be given in the manner set forth in
Section 11.2 of the Loan Agreement (i) in the case of the Administrative Agent,
to the address set forth in Section 11.2 of the Loan Agreement, (ii) in the
case of a Subsidiary Guarantor, to the address set forth in Schedule I hereto,
or (iii) in the case of each party hereto, to such other addresses as to which
the Administrative Agent may be hereafter notified by the respective parties
hereto.



	 	6.	 	Expenses



         Each Subsidiary Guarantor agrees that it shall, promptly after demand, pay
to the Administrative Agent any and all reasonable out-of-pocket sums, costs
and expenses, which any Loan Party may pay or incur defending, protecting or
enforcing this Guaranty (whether suit is instituted or not), reasonable
attorneys’ fees and disbursements. All sums, costs and expenses which are due
and payable pursuant to this Section shall bear interest, payable on demand, at
the highest rate then payable on the Borrower Obligations.



	 	7.	 	Repayment in Bankruptcy, etc.



         If, at any time or times subsequent to the payment of all or any part of
the Borrower Obligations or the Guarantor Obligations, any Credit Party shall
be required to repay any amounts previously paid by or on behalf of the
Borrower or any Subsidiary Guarantor in reduction thereof by virtue of an order
of any court having jurisdiction in the premises, including as a result of an
adjudication that such amounts constituted preferential payments or fraudulent
conveyances, the Subsidiary Guarantors unconditionally agree to pay to the
Administrative Agent, within 10 days after demand, a sum in cash equal to the
amount of such repayment,


 







 




 together with interest on such amount from the date of such repayment by
such Credit Party to the date of payment to the Administrative Agent at the
applicable after-maturity rate set forth in the Loan Agreement.



	 	8.	 	Miscellaneous



                     (a)         Except as otherwise expressly provided in this Guaranty, each
Subsidiary Guarantor hereby waives presentment, demand for payment, notice of
default, nonperformance and dishonor, protest and notice of protest of or in
respect of this Guaranty, the other Loan Documents and the Borrower
Obligations, notice of acceptance of this Guaranty and reliance hereupon by any
Credit Party, and the incurrence of any of the Borrower Obligations, notice of
any sale of collateral security or any default of any sort.



                     (b)         No Subsidiary Guarantor is relying upon any Credit Party to provide to
such Subsidiary Guarantor any information concerning the Borrower or any of its
Subsidiaries, and each Subsidiary Guarantor has made arrangements satisfactory
to such Subsidiary Guarantor to obtain from the Borrower on a continuing basis
such information concerning the Borrower and its Subsidiaries as such
Subsidiary Guarantor may desire.



                     (c)         Each Subsidiary Guarantor agrees that any statement of account with
respect to the Borrower Obligations from any Credit Party to the Borrower which
binds the Borrower shall also be binding upon such Subsidiary Guarantor, and
that copies of said statements of account maintained in the regular course of
or such Credit Party’s business may be used in evidence against such Subsidiary
Guarantor in order to establish its Guarantor Obligations.



                     (d)         Each Subsidiary Guarantor acknowledges that it has received a copy of
the Loan Documents and has approved of the same. In addition, each Subsidiary
Guarantor acknowledges having read each Loan Document and having had the advice
of counsel in connection with all matters concerning its execution and delivery
of this Guaranty.



                     (e)         This Guaranty shall be binding upon each Subsidiary Guarantor and its
successors and inure to the benefit of, and be enforceable by the
Administrative Agent, Lenders and their respective successors, transferees and
assigns. No Subsidiary Guarantor may assign any right, or delegate any duty,
it may have under this Guaranty.



                     (f)         Subject to the limitations set forth in Section 2(b), the Guarantor
Obligations shall be joint and several.



                     (g)         This Guaranty is the “Guaranty” referred to in the Loan Agreement, and
is subject to, and should be construed in accordance with, the provisions
thereof. Each of the parties hereto acknowledges and agrees that the following
provisions of the Loan Agreement are made applicable to this Guaranty and all
such provisions are incorporated by reference herein as if fully set forth
herein, including Sections 1 (Definitions), 2.11 (Taxes; Net Payments), 9.1
(Events of Default), 11.1 (Amendments and Waivers), 11.3 (No Waiver; Cumulative
Remedies), 11.5 (Payment of Expenses and Taxes), 11.7 (Successors and Assigns),
11.9 (Counterparts), 11.12 (Indemnity), 11.13 (Governing Law), 11.14, (Headings
Descriptive), 11.15



 







 





(Severability), 11.16 (Integration), 11.17 (Consent to Jurisdiction),
11.18 (Service of Process), 11.19 (No Limitation on Service or Suit) and 11.20
(WAIVER OF TRIAL BY JURY) thereof.


                     (h)         Each Subsidiary Guarantor agrees that (i) the execution and delivery
of a Guaranty by any Required Additional Guarantor after the date hereof shall
not affect the obligations of the Subsidiary Guarantors hereunder, and (ii) the
Subsidiary Guarantors and each such Required Additional Guarantor shall,
subject to Section 2(b), be jointly and severally liable for all of the
Borrower Obligations.



                     IN EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Subsidiary
Guarantee to be duly executed on its behalf.




	 	 	 	 	 
	 	 	
NEW PLAN REALTY TRUST, a Massachusetts business trust
	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
By:
	/s/ Steven F. Siegel
	
	
	
	

	 	 	 	

	
	
	
	

	 	 	
Name:
	Steven F. Siegel
	
	
	
	

	 	 	 	 	

	
	
	
	

	 	 	
Title:
	Senior Vice President
	
	
	
	

	 	 	 	 	

	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
EXCEL REALTY TRUST-ST, INC., a
Delaware corporation
	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
By:
	/s/ Steven F. Siegel
	
	
	
	

	 	 	 	

	
	
	
	

	 	 	
Name:
	Steven F. Siegel
	
	
	
	

	 	 	 	 	

	
	
	
	

	 	 	
Title:
	Senior Vice President
	
	
	
	

	 	 	 	 	

	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
[CORPORATE SEAL]
	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
ERT DEVELOPMENT CORPORATION, a Delaware corporation
	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
By:
	/s/ Steven F. Siegel
	
	
	
	

	 	 	 	

	
	
	
	

	 	 	
Name:
	Steven F. Siegel
	
	
	
	

	 	 	 	 	

	
	
	
	

	 	 	
Title:
	Senior Vice President
	
	
	
	

	 	 	 	 	

	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
[CORPORATE SEAL]
	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
FLEET NATIONAL BANK, as Administrative Agent
	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
By:
	/s/ Bill Lamb
	
	
	
	

	 	 	 	

	
	
	
	

	 	 	
Name:
	Bill Lamb
	
	
	
	

	 	 	 	 	

	
	
	
	

	 	 	
Title:
	Vice President
	
	
	
	

	 	 	 	 	




 







 



SCHEDULE I

TO SUBSIDIARY GUARANTY



SUBSIDIARY GUARANTORS



UNDER GUARANTY DATED AS OF MARCH 1, 2002




	 	 	 	 	 
	 	 	Jurisdiction of	 	 
	Name	 	Incorporation or Formation	 	Address for Notices
	
	 	
	 	

	New Plan Realty Trust	 	
Massachusetts
	 	c/o New Plan Excel
	
	
	
	

	 	 	 	 	Realty Trust, Inc.
	
	
	
	

	 	 	 	 	1120 Avenue of the Americas
	
	
	
	

	 	 	 	 	New York, New York 10036
	
	
	
	

	 	 	 	 	 
	
	
	
	

	Excel Realty Trust –	 	
Delaware
	 	c/o New Plan Excel
	
	
	
	

	ST, Inc.	 	 	 	Realty Trust, Inc.
	
	
	
	

	 	 	 	 	1120 Avenue of the Americas
	
	
	
	

	 	 	 	 	New York, New York 10036
	
	
	
	

	 	 	 	 	 
	
	
	
	

	ERT Development	 	
Delaware
	 	c/o New Plan Excel
	
	
	
	

	Corporation	 	 	 	Realty Trust, Inc.
	
	
	
	

	 	 	 	 	1120 Avenue of the Americas
	
	
	
	

	 	 	 	 	New York, New York 10036