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EXHIBIT 5.2
[Property Name]
August 1, 2000
FORM OF GUARANTY OF RECOURSE OBLIGATIONS OF BORROWER
FOR VALUE RECEIVED, and to induce GMAC COMMERCIAL MORTGAGE CORPORATION,
a California corporation, having its principal place of business at 200 Witmer
Road, Horsham, Pennsylvania 19044 ("LENDER"), to lend to [BORROWER], having its
principal place of business c/o Kramont Realty Trust, Plymouth Plaza, 580 West
Germantown Pike, Suite 200, Plymouth Meeting, Pennsylvania 19462 ("BORROWER"),
the principal sum of _____________________________________________________
DOLLARS ($____________) (the "LOAN"), evidenced by a certain note (the "NOTE")
and secured by a certain mortgage or deed of trust (the "SECURITY INSTRUMENT"),
as described in Exhibit A attached hereto and made a part hereof, and by other
documents executed in connection therewith (the "OTHER SECURITY DOCUMENTS"),
The undersigned, KRAMONT REALTY TRUST, KRAMONT OPERATING PARTNERSHIP,
L.P. and MONTGOMERY CV REALTY L.P., each having an address at Plymouth Plaza,
580 West Germantown Pike, Suite 200, Plymouth Meeting, Pennsylvania 19462
(hereinafter collectively referred to as "GUARANTOR"), jointly and severally
hereby absolutely and unconditionally guarantee to Lender the prompt and
unconditional payment of the Guaranteed Obligations of Borrower (hereinafter
defined).
It is expressly understood and agreed that this is a continuing
guaranty and that the obligations of Guarantor hereunder are and shall be
absolute under any and all circumstances, without regard to the validity,
regularity or enforceability of the Note, the Security Instrument, or the Other
Security Documents, a true copy of each of said documents Guarantor hereby
acknowledges having received and reviewed.
The term "DEBT" as used in this Guaranty of Recourse Obligations of
Borrower (this "GUARANTY") shall mean the principal sum evidenced by the Note
and secured by the Security Instrument, or so much thereof as may be outstanding
from time to time, together with interest thereon at the rate of interest
specified in the Note and all other sums other than principal or interest which
may or shall become due and payable pursuant to the provisions of the Note, the
Security Instrument or the Other Security Documents.
The term "GUARANTEED OBLIGATIONS OF BORROWER" as used in this Guaranty
shall mean all obligations and liabilities of Borrower for which Borrower shall
be liable pursuant to the Note, the Security Instrument or the Other Security
Documents.
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[Property Name]
Any indebtedness of Borrower to Guarantor now or hereafter existing
(including, but not limited to, any rights to subrogation Guarantor may have as
a result of any payment by Guarantor under this Guaranty), together with any
interest thereon, shall be, and such indebtedness is, hereby deferred, postponed
and subordinated to the prior payment in full of the Debt. Until payment in full
of the Debt (and including interest accruing on the Note after the commencement
of a proceeding by or against Borrower under the Bankruptcy Reform Act of 1978,
as amended, 11 U.S.C. Sections 101 et seq., and the regulations adopted and
promulgated pursuant thereto (collectively, the "BANKRUPTCY CODE") which
interest the parties agree shall remain a claim that is prior and superior to
any claim of Guarantor notwithstanding any contrary practice, custom or ruling
in cases under the Bankruptcy Code generally), Guarantor agrees not to accept
any payment or satisfaction of any kind of indebtedness of Borrower to Guarantor
and hereby assigns such indebtedness to Lender, including the right to file
proof of claim and to vote thereon in connection with any such proceeding under
the Bankruptcy Code, including the right to vote on any plan of reorganization.
Further, if Guarantor shall comprise more than one person, firm or corporation,
Guarantor agrees that until such payment in full of the Debt, (a) no one of them
shall accept payment from the others by way of contribution on account of any
payment made hereunder by such party to Lender, (b) no one of them will take any
action to exercise or enforce any rights to such contribution, and (c) if any of
Guarantor should receive any payment, satisfaction or security for any
indebtedness of Borrower to any of Guarantor or for any contribution by the
others of Guarantor for payment made hereunder by the recipient to Lender, the
same shall be delivered to Lender in the form received, endorsed or assigned as
may be appropriate for application on account of, or as security for, the Debt
and until so delivered, shall be held in trust for Lender as security for the
Debt.
Guarantor agrees that, with or without notice or demand, Guarantor will
reimburse Lender, to the extent that such reimbursement is not made by Borrower,
for all expenses (including counsel fees) incurred by Lender in connection with
the collection of the Guaranteed Obligations of Borrower or any portion thereof
or with the enforcement of this Guaranty.
All moneys available to Lender for application in payment or reduction
of the Debt may be applied by Lender in such manner and in such amounts and at
such time or times and in such order and priority as Lender may see fit to the
payment or reduction of such portion of the Debt as Lender may elect.
Guarantor hereby waives notice of the acceptance hereof, presentment,
demand for payment, protest, notice of protest, or any and all notice of
non-payment, non-performance or non-observance, or other proof, or notice or
demand, whereby to charge Guarantor therefor.
Guarantor further agrees that the validity of this Guaranty and the
obligations of Guarantor hereunder shall in no way be terminated, affected or
impaired (a) by reason of the assertion by Lender of any rights or remedies
which it may have under or with respect to either the Note, the Security
Instrument, or the Other Security Documents, against any person obligated
thereunder or against the owner of the Property (as defined in the Security
Instrument), or (b) by reason of any failure to file or record any of such
instruments or to take or perfect any security intended to be provided thereby,
or (c) by reason of the release or exchange of any property
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[Property Name]
covered by the Security Instrument or other collateral for the Loan, or (d) by
reason of Lender's failure to exercise, or delay in exercising, any such right
or remedy or any right or remedy Lender may have hereunder or in respect to this
Guaranty, or (e) by reason of the commencement of a case under the Bankruptcy
Code by or against any person obligated under the Note, the Security Instrument
or the Other Security Documents, or the death of any Guarantor, or (f) by reason
of any payment made on the Debt or any other indebtedness arising under the
Note, the Security Instrument or the Other Security Documents, whether made by
Borrower or Guarantor or any other person, which is required to be refunded
pursuant to any bankruptcy or insolvency law; it being understood that no
payment so refunded shall be considered as a payment of any portion of the Debt,
nor shall it have the effect of reducing the liability of Guarantor hereunder.
It is further understood, that if Borrower shall have taken advantage of, or be
subject to the protection of, any provision in the Bankruptcy Code, the effect
of which is to prevent or delay Lender from taking any remedial action against
Borrower, including the exercise of any option Lender has to declare the Debt
due and payable on the happening of any default or event by which under the
terms of the Note, the Security Instrument or the Other Security Documents, the
Debt shall become due and payable, Lender may, as against Guarantor,
nevertheless, declare the Debt due and payable and enforce any or all of its
rights and remedies against Guarantor provided for herein.
Guarantor further covenants that this Guaranty shall remain and
continue in full force and effect as to any modification, extension or renewal
of the Note, the Security Instrument, or any of the Other Security Documents,
that Lender shall not be under a duty to protect, secure or insure any security
or lien provided by the Security Instrument or other such collateral, and that
other indulgences or forbearance may be granted under any or all of such
documents, all of which may be made, done or suffered without notice to, or
further consent of, Guarantor.
As a further inducement to Lender to make the Loan and in consideration
thereof, Guarantor further covenants and agrees (a) that in any action or
proceeding brought by Lender against Guarantor on this Guaranty, Guarantor shall
and does hereby waive trial by jury, (b) Guarantor will maintain a place of
business or an agent for service of process in Pennsylvania and give prompt
notice to Lender of the address of such place of business and of the name and
address of any new agent appointed by it, as appropriate, (c) the failure of
Guarantor's agent for service of process to give it notice of any service of
process will not impair or affect the validity of such service or of any
judgment based thereon, (d) if, despite the foregoing, there is for any reason
no agent for service of process of Guarantor available to be served, and if
Guarantor at that time has no place of business in Pennsylvania then Guarantor
irrevocably consents to service of process by registered or certified mail,
postage prepaid, to it at its address given in or pursuant to the first
paragraph hereof, Guarantor hereby waiving personal service thereof, (e) that
within thirty days after such mailing, Guarantor so served shall appear or
answer to any summons and complaint or other process and should Guarantor so
served fail to appear or answer within said thirty-day period, said Guarantor
shall be deemed in default and judgment may be entered by Lender against the
said party for the amount as demanded in any summons and complaint or other
process so served, (f) Guarantor initially and irrevocably designates Stanley
Cohen, Esq, with offices on the date hereof at 2000 Market Street, Tenth Floor,
for service of process in Philadelphia, Pennsylvania with respect to this
Guaranty, (g) with respect to any claim or action
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[Property Name]
arising hereunder, Guarantor (i) irrevocably submits to the nonexclusive
jurisdiction of the courts of the State where the Property is located and the
United States District Court located in the county in which the Property is
located, and appellate courts from any thereof, and (ii) irrevocably waives any
objection which it may have at any time to the laying on venue of any suit,
action or proceeding arising out of or relating to this Security Instrument
brought in any such court, irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum, and (h) nothing in this Guaranty will be deemed to preclude
Lender from bringing an action or proceeding with respect hereto in any other
jurisdiction.
This is a guaranty of payment and not of collection and upon any
default of Borrower under the Note, the Security Instrument or the Other
Security Documents, Lender may, at its option, proceed directly and at once,
without notice, against Guarantor to collect and recover the full amount of the
liability hereunder or any portion thereof, without proceeding against Borrower
or any other person, or foreclosing upon, selling, or otherwise disposing of or
collecting or applying against any of the mortgaged property or other collateral
for the Loan. Guarantor hereby waives the pleading of any statute of limitations
as a defense to the obligation hereunder.
Each reference herein to Lender shall be deemed to include its
successors and assigns, to whose favor the provisions of this Guaranty shall
also inure. Each reference herein to Guarantor shall be deemed to include the
heirs, executors, administrators, legal representatives, successors and assigns
of Guarantor, all of whom shall be bound by the provisions of this Guaranty.
If any party hereto shall be a partnership, the agreements and
obligations on the part of Guarantor herein contained shall remain in force and
application notwithstanding any changes in the individuals composing the
partnership and the term "Guarantor" shall include any altered or successive
partnerships but the predecessor partnerships and their partners shall not
thereby be released from any obligations or liability hereunder.
Each Guarantor (and its representative, executing below, if any) has
full power, authority and legal right to execute this Guaranty and to perform
all its obligations under this Guaranty.
All understandings, representations and agreements heretofore had with
respect to this Guaranty are merged into this Guaranty which alone fully and
completely expresses the agreement of Guarantor and Lender.
This Guaranty may be executed in one or more counterparts by some or
all of the parties hereto, each of which counterparts shall be an original and
all of which together shall constitute a single agreement of Guaranty. The
failure of any party hereto to execute this Guaranty, or any counterpart hereof,
shall not relieve the other signatories from their obligations hereunder.
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[Property Name]
This Guaranty may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Lender or Borrower, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
This Guaranty shall be deemed to be a contract entered into pursuant to
the laws of the Commonwealth of Pennsylvania and shall in all respects be
governed, construed, applied and enforced in accordance with applicable federal
law and the laws of the Commonwealth of Pennsylvania, without reference or
giving effect to any choice of law doctrine.
With respect to Kramont Realty Trust (the "TRUST"), this Guaranty and
all documents, agreements, understandings and arrangements relating to this
transaction have been executed by the undersigned in his capacity as an officer
or trustee of the Trust, or its affiliates, which has been formed as a Maryland
real estate investment trust pursuant to an Amended and Restated Declaration of
Trust of Kramont Realty Trust effective as of June 16, 2000, and not
individually, and none of the trustees, officers, shareholders, employees or
agents of the Trust shall be bound or have any personal liability hereunder or
thereunder. Lender shall look solely to the assets of the Trust for satisfaction
of any liability of the Trust in respect of this Guaranty and all documents,
agreements, understandings and arrangements relating to this transaction and
will not seek recourse or commence any action against any of the trustees,
officers, shareholders, employees or agents of the Trust or any of their
personal assets (including without limitation personal bank accounts maintained
with Lender) for the performance or payment of any obligation hereunder or
thereunder. The foregoing shall also apply to any future documents, agreements,
understandings, arrangement and transactions between the parties hereto.
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[Property Name]
IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the
date first above set forth.
GUARANTOR:
KRAMONT REALTY TRUST,
a Maryland real estate investment trust
(successor by merger to CV Reit, Inc.)
By: ______________________________
Louis P. Meshon, Sr.
President & CEO
KRAMONT OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Kramont Realty Trust,
a Maryland real estate investment trust
its sole general partner
By: ___________________________
Louis P. Meshon, Sr.
President & CEO
MONTGOMERY CV REALTY L.P.,
a Delaware limited partnership
By: CV GP L.P.,
a Delaware limited partnership,
its sole general partner
By: CV GP LLC,
a Delaware limited liability company,
its sole general partner
By: Kramont Operating Partnership, L.P.,
a Delaware limited partnership,
its sole member
By: Kramont Realty Trust,
a Maryland real estate investment trust,
its sole general partner
By: ______________________________
Louis P. Meshon, Sr.
President & CEO
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[Property Name]
EXHIBIT A
(Description of Note and Security Instrument)
1. Promissory Note (the "Note") dated August 1, 2000 by Borrower in
favor of Lender in the original principal amount of the Loan.
2. Mortgage and Security Agreement dated August 1, 2000 by Borrower in
favor of Lender, which Mortgage and Security Agreement secures the Note.
A-1