Exhibit 10.104
AMENDED AND RESTATED GUARANTY
AGREEMENT
This Amended and Restated Guaranty
Agreement (this “Guaranty”) is made as of
October 25, 2007, by Kennedy-Wilson, Inc., a Delaware
corporation (singly or collectively, “Guarantor”), in
favor of Bank of America, N.A., a national banking association, as
agent for Lenders as that term is defined below (in such capacity,
“Administrative Agent”) and each of the
Lenders.
PRELIMINARY STATEMENTS
Administrative Agent and certain
other lenders from time to time (each a “Lender” and
collectively, “Lenders”) and FAIRWAYS 340 LLC, a
Delaware limited liability company (“Borrower”), have
entered into, are entering into concurrently herewith, or
contemplate entering into, that certain Amended and Restated Loan
Agreement of even date herewith (herein called, as it may hereafter
be modified, supplemented, restated, extended, or renewed and in
effect from time to time, the “Loan Agreement”), which
Loan Agreement sets forth the terms and conditions of a loan (the
“Loan”) to Borrower with respect to land located in
Walnut Creek, California, as more particularly described in the
Loan Agreement and identified therein as the
“Land.”
A condition precedent to
Lenders’ obligation to make the Loan to Borrower is
Guarantor’s execution and delivery to Administrative Agent of
this Guaranty.
The Loan is, or will be, evidenced
by those certain Amended and Restated Deed of Trust Notes of even
date with the Loan Agreement, executed by Borrower and payable to
the order of Lenders in the aggregate original face principal
amount of Forty-Two Million Three Hundred Fifty-Nine Thousand Five
Hundred Four Dollars ($42,359,504) (such notes, as they may
hereafter be renewed, extended, supplemented, increased or modified
and in effect from time to time, and all other notes given in
substitution therefor, or in modification, renewal, or extension
thereof, in whole or in part, are herein called the
“Note”).
Borrower and Bank of America, N.A.
as Lender or an affiliate thereof (collectively, “Swap
Bank”) may from time to time enter into an interest rate swap
agreement, International Swaps and Derivatives
Association, Inc. (ISDA) Master Agreement or other similar
agreement or arrangement to hedge the risk of variable interest
rate volatility or fluctuations of interest rates (any such
agreement or arrangement as it may hereafter be renewed, extended,
supplemented, increased or modified and in effect from time to time
is herein called an “Interest Rate Protection
Agreement”).
Any capitalized term used and not
defined in this Guaranty shall have the meaning given to such term
in the Loan Agreement, This Guaranty is one of the Loan Documents
described in the Loan Agreement.
STATEMENT OF’
AGREEMENTS
For good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, and as a
material inducement to Administrative Agent and Lenders to extend
credit to Borrower, Guarantor hereby guarantees to Administrative
Agent and Lenders the prompt and full payment and performance of
the indebtedness and obligations described below in this Guaranty
(collectively called the “Guaranteed Obligations”),
this Guaranty being upon the following terms and
conditions:
1.
Guarantees.
(a)
Guaranty of
Payment.
(i)
Guarantor hereby
jointly and severally, unconditionally and irrevocably guarantees
to Administrative Agent and Lenders the punctual payment when due,
whether by lapse of time, by acceleration of maturity, or
otherwise, of all principal, interest (including interest accruing
after the commencement of any bankruptcy or insolvency proceeding
by or against Borrower, whether or not allowed in such proceeding),
fees, late charges, prepayment fees, costs, expenses, required
Borrower’s Deposits, advances made before recording of the
Deed of Trust (if any), and other sums of money now or hereafter
due and owing, or which Borrower is obligated to pay, pursuant to
(a) the terms of the Note, the Loan Agreement, the Deed of
Trust, the Environmental Agreement, any application, agreement,
note or other document executed and delivered in connection with
any Letter of Credit, any set aside letters, any Interest Rate
Protection Agreement or any other Loan Documents, including any
indemnifications contained in the Loan Documents, now or hereafter
existing, and (b) all renewals, extensions, refinancings,
modifications, supplements or amendments of such indebtedness, or
any of the Loan Documents, or any part thereof (the indebtedness
described in clauses (a) and (b) above in this
Section 1 is herein collectively called the
“Indebtedness”). This Guaranty covers the Indebtedness,
whether presently outstanding or arising subsequent to the date
hereof, including all amounts advanced by Administrative Agent or
Lenders in stages or installments. The guaranty of Guarantor as set
forth in this Section 1 is a continuing guaranty of payment
and not a guaranty of collection.
(ii)
Notwithstanding
the foregoing, Guarantor’s obligations hereunder for
repayment of the principal owing under the Loan shall in no event
exceed the sum of (a) the L/C Obligations, plus (b) all
amounts owing under all Interest Rate Protection Agreements, plus
(e) Eight Million Five Hundred Thousand Dollars ($8,500,000)
(the “Guaranteed Principal Amount”), plus interest
accrued and unpaid on the entire Indebtedness from the date the
same is due until paid in full, together with all costs, expenses
and attorneys’ fees incurred by Administrative Agent or
Lenders. Guarantor’s obligations shall not be affected,
impaired, lessened or released by loans, credits or other financial
accommodations now existing or hereafter advanced by Administrative
Agent or Lenders to Borrower in excess of the Guaranteed Principal
Amount. In no event shall the Guaranteed Principal Amount be
reduced as a result of (i) Borrower’s payment of the
Guaranteed Obligations, or (ii) Administrative Agent’s
foreclosure (or any credit bid in connection with any such
foreclosure) or acceptance of a deed in lieu of foreclosure for the
benefit of Lenders with respect to any collateral securing the
Indebtedness. The agreement of Administrative Agent and Lenders to
the foregoing limitation on Guarantor’s
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liability shall in no way be
deemed to limit or restrict the right of Administrative Agent or
Lenders to apply any sums paid by Guarantor to any portion of the
Loan.
(b)
Guaranty of
Performance. Guarantor also hereby unconditionally and irrevocably
guarantees to Lender the timely performance of all other
Obligations under all of the Loan Documents, including, without
limiting the generality of the foregoing:
(i)
that the repair,
rehabilitation and construction of the Improvements will be
completed in accordance with the Plans and other requirements of
the Loan Agreement;
(ii)
that Borrower
will make all deposits required under the terms of the Loan
Agreement and the other Loan Documents, as and when
required;
(iii)
that Borrower
will promptly pay in full and discharge all taxes, assessments and
other charges or levies imposed upon or against or with respect to
the Property or the ownership, use, occupancy or enjoyment of any
portion thereof, or any utility service thereto, as the same become
due and payable, including all real estate taxes assessed against
the Property or any part thereof;
(iv)
that Borrower
will pay, at or before the times required by the Loan Documents,
the premiums on all policies of insurance required to be maintained
under the terms of the Loan Documents; and
(v)
that Borrower
will duly and punctually perform and observe all other terms,
covenants and conditions of the Note, the Loan Agreement, the Deed
of Trust, the Environmental Agreement, any Interest Rate Protection
Agreement and all other Loan Documents.
Upon demand by Lender following the
occurrence of an Event of Default, Guarantor will cause all work to
the Improvements to be completed in accordance with the Plans and
other requirements of the Loan Agreement and will pay all bills in
connection therewith. The liability and obligations under this
Section 1(b) shall not be limited or restricted by the
existence of, or any terms of, the guaranty of payment under
Section 1(a).
2.
Absolute,
Irrevocable and Unconditional Guaranty.
(a)
This Guaranty is
an absolute, irrevocable and unconditional guaranty of payment and
performance. This Guaranty shall be effective as a waiver of, and
Guarantor hereby expressly waives, any and all rights to which
Guarantor may otherwise have been entitled under any suretyship
laws in effect from time to time, including any right or privilege,
whether existing under statute, at law or in equity, to require
Administrative Agent or Lenders to take prior recourse or
proceedings against any collateral, security or Person (hereinafter
defined) whatsoever.
(b)
As used herein,
the term “Event of Default” means the occurrence of one
or more of the following events, individually or
collectively:
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(i)
default by
Borrower in payment or performance of the Guaranteed Obligations,
or any part thereof, when such indebtedness or performance becomes
due, either by its terms or as the result of the exercise of any
power to accelerate;
(ii)
the failure of
Guarantor to perform completely and satisfactorily the covenants,
terms and conditions of any of the Guaranteed
Obligations;
(iii)
the death,
dissolution or insolvency of Guarantor, or the appointment of a
conservator for Guarantor, and such Guarantor is not replaced with
another Guarantor satisfactory to Administrative Agent within
forty-five (45) days after the occurrence of such
event;
(iv)
the inability of
Guarantor to pay debts as they mature;
(v)
an assignment by
Guarantor for the benefit of creditors;
(vi)
the institution
of any proceeding by or against Guarantor in bankruptcy or for a
reorganization or an arrangement with creditors, or for the
appointment of a receiver, trustee or custodian for any of them or
for any of their respective properties;
(vii)
the determination
by Administrative Agent in good faith that a material adverse
change has occurred in the financial condition of
Guarantor;
(viii)
the entry of a
judgment against Guarantor in an amount greater than $500,000 and
such judgment remains unstayed or unbonded for a period of thirty
(30) days;
(ix)
the issuance of a
writ or order of attachment, levy or garnishment against
Guarantor;
(x)
the falsity in
any material respect of, or any material omission in, any
representation made to Administrative Agent or any Lender by
Guarantor; and/or
(xi)
any transfer of
assets of any Guarantor, without the prior consent of
Administrative Agent (except for transfers of assets for estate
planning purposes valued at less than $50,000 per year per
Guarantor, customary political and charitable contributions, and
transfers for which Guarantor receives consideration substantially
equivalent to the fair market value of the transferred
asset).
(c)
Upon the
occurrence of any Event of Default, the Guaranteed Obligations, for
purposes of this Guaranty, shall be deemed immediately due and
payable at the election of Administrative Agent, and Guarantor
shall, on demand and without presentment, protest, notice of
protest, further notice of nonpayment or of dishonor, default or
nonperformance, or notice of acceleration or of intent to
accelerate, or any other notice whatsoever, without any notice
having been given to Guarantor prior to such demand of the
acceptance by Administrative Agent and Lenders of this Guaranty,
and without any notice having been given to Guarantor prior to such
demand of the creating or incurring of such indebtedness, all such
notices being hereby waived by Guarantor, pay the amount due to
Administrative Agent and Lenders, and pay all damages and all costs
and expenses that may arise in consequence of such Event of Default
(including all
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attorneys’ fees and
expenses, investigation costs, court costs, and any and all other
costs and expenses incurred by Administrative Agent or Lenders in
connection with the collection and enforcement of the Note or any
other Loan Document), whether or not suit is filed thereon, or
whether at maturity or by acceleration, or whether before or after
maturity, or whether in connection with bankruptcy, insolvency or
appeal. It shall not be necessary for Administrative Agent or
Lenders, in order to enforce such payment by Guarantor, first to
institute judicial or non-judicial foreclosure or pursue or exhaust
any rights or remedies against Borrower or others liable on such
indebtedness, or to enforce any rights against any security that
shall ever have been given to secure such indebtedness, or to join
Borrower or any others liable for the payment of the Guaranteed
Obligations or any part thereof in any action or proceeding to
enforce this Guaranty, or to resort to any other means of obtaining
payment or performance of the Guaranteed Obligations; provided,
however, that nothing herein contained shall prevent Administrative
Agent or Lenders from judicially or non-judicially foreclosing the
Deed of Trust or from exercising any other rights or remedies under
the Loan Documents, and if such foreclosure or other right or
remedy is availed of, only the net proceeds therefrom, after
deduction of all charges and expenses of every kind and nature
whatsoever, shall be applied in reduction of the amount due on the
Note and Deed of Trust, and neither Administrative Agent nor
Lenders shall be required to institute or prosecute proceedings to
recover any deficiency as a condition of payment hereunder or
enforcement hereof. At any sale of the Property or other collateral
given for the Indebtedness or any part thereof, whether by
foreclosure or otherwise, Administrative Agent or any Lender may at
its discretion purchase all or any part of the Property or
collateral so sold or offered for sale for its own account and may,
in payment of the amount bid therefor, deduct such amount from the
balance due it pursuant to the terms of the Note, Deed of Trust and
other Loan Documents. Collection action may be taken or demand may
be made against Borrower or against all parties who have signed
this Guaranty or any other guaranty covering all or any part of the
Guaranteed Obligations, or against any one or more of them,
separately or together, without impairing the rights of
Administrative Agent or Lenders against any party
hereto.
3.
Certain
Agreements and Waivers by Guarantor.
(a)
Guarantor hereby
agrees that neither the rights or remedies of Administrative Agent
or Lenders nor Guarantor’s obligations under the terms of
this Guaranty shall be released, diminished, impaired, reduced or
affected by any one or more of the following events, actions,
facts, or circumstances, and the liability of Guarantor under this
Guaranty shall be absolute and unconditional irrespective
of:
(i)
any limitation of
liability or recourse in any other Loan Document or arising under
any law;
(ii)
any and all
applicable statutes of limitations; all of which Guarantor hereby
waives to the fullest extent permitted by law as a defense to any
action or proceeding that may be brought by Administrative Agent or
Lenders against Guarantor;
(iii)
any claim or
defense that this Guaranty was made without consideration or is not
supported by adequate consideration;
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(iv)
the taking or
accepting of any other security or guaranty for, or right of
recourse with respect to, any or all of the Guaranteed
Obligations;
(v)
any homestead
exemption or any other exemption under applicable law;
(vi)
any release,
surrender, abandonment, exchange, alteration, sale or other
disposition, subordination, deterioration, waste, failure to
protect or preserve, impairment, or loss of, or any failure to
create or perfect any lien or security interest with respect to, or
any other dealings with, any collateral or security at any time
existing or purported, believed or expected to exist in connection
with any or all of the Guaranteed Obligations, including any
impairment of Guarantor’s recourse against any Person or
collateral;
(vii)
whether express
or by operation of law, any partial release of the liability of
Guarantor hereunder, or if one or more other guaranties are now or
hereafter obtained by Administrative Agent or Lenders covering all
or any part of the Guaranteed Obligations, any complete or partial
release of any one or more of such guarantors under any such other
guaranty, or any complete or partial release of Borrower or any
other party liable, directly or indirectly, for the payment or
performance of any or all of the Guaranteed
Obligations;
(viii)
the death of
Borrower or the appointment of a conservator for
Borrower;
(ix)
the insolvency,
bankruptcy, dissolution, liquidation, termination, receivership,
reorganization, merger, consolidation; change of form, structure or
ownership, sale of all assets, or lack of corporate, partnership or
other power of Borrower or any other party at any time liable for
the payment of any or all of the Guaranteed
Obligations;
(x)
either with or
without notice to or consent of Guarantor: any renewal, extension,
modification, supplement, subordination or rearrangement of the
terms of any or all of the Guaranteed Obligations and/or any of the
Loan Documents, including material alterations of the terms of
payment (including changes in maturity date(s) and interest
rate(s)) or any other terms thereof, or any waiver, termination, or
release of, or consent to depart from, any of the Loan Documents or
any other guaranty of any or all of the Guaranteed Obligations, or
any adjustment, indulgence, forbearance, or compromise that may be
granted from time to time by Administrative Agent or Lenders to
Borrower, Guarantor, and/or any other Person at any time liable for
the payment or performance of any or all of the Guaranteed
Obligations;
(xi)
any neglect, lack
of diligence, delay, omission, failure, or refusal of
Administrative Agent or Lenders to take or prosecute (or in taking
or prosecuting) any action for the collection or enforcement of any
of the Guaranteed Obligations, or to foreclose or take or prosecute
any action to foreclose (or in foreclosing or taking or prosecuting
any action to foreclose) upon any security therefor, or to exercise
(or in exercising) any other right or power with respect to any
security therefor, or to take or prosecute (or in taking or
prosecuting) any action in connection with any Loan Document, or
any failure to sell or otherwise dispose of in a commercially
reasonable manner any collateral securing any or all of the
Guaranteed Obligations;
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(xii)
any failure of
Administrative Agent or Lenders to notify Guarantor of any
creation, renewal, extension, rearrangement, modification,
supplement, subordination, or assignment of the Guaranteed
Obligations or any part thereof, or of any Loan Document, or of any
release of or change in any security, or of any other action taken
or refrained from being taken by Administrative Agent or Lenders
against Borrower or any security or other recourse, or of any new
agreement between or among Administrative Agent and/or Lenders and
Borrower, it being understood that neither Administrative Agent nor
any Lender shall be required to give Guarantor any notice of any
kind under any circumstances with respect to or in connection with
the Guaranteed Obligations, any and all rights to notice Guarantor
may have otherwise had being hereby waived by Guarantor, and
Guarantor shall be responsible for obtaining for itself information
regarding Borrower, including any changes in the business or
financial condition of Borrower, and Guarantor acknowledges and
agrees that Administrative Agent and Lenders shall have no duty to
notify Guarantor of any information which Administrative Agent or
Lenders may have concerning Borrower;
(xiii)
whether for any
reason Administrative Agent or any Lender is required to refund any
payment by Borrower to any other party liable for the payment or
performance of any or all of the Guaranteed Obligations, or to pay
the amount thereof to someone else;
(xiv)
the making of
advances by Administrative Agent or Lenders to protect their
interest in the Property, to preserve the value of the Property or
to facilitate performance of any term or covenant contained in any
of the Loan Documents;
(xv)
the existence of
any claim, counterclaim, set-off or other right that Guarantor may
at any time have against Borrower, Administrative Agent or any
Lender, or any other Person, whether or not arising in connection
with this Guaranty, the Note, the Loan Agreement, or any other Loan
Document;
(xvi)
the
unenforceability of all or any part of the Guaranteed Obligations
against Borrower, whether because the Guaranteed Obligations exceed
the amount permitted by law or violate any usury law, or because
the act of creating the Guaranteed Obligations, or any part
thereof, is ultra vires, or because the officers or Persons
creating the Guaranteed Obligations acted outside the scope of
their authority, or because of a lack of validity or enforceability
of or defect or deficiency in any of the Loan Documents, or because
Borrower has any valid defense, claim or offset with respect
thereto, or because Borrower’s obligation ceases to exist by
operation of law, or because of any other reason or circumstance,
it being agreed that Guarantor shall remain liable on this Guaranty
regardless of whether Borrower or any other Person be found not
liable for the Guaranteed Obligations, or any part thereof, for any
reason (and regardless of any joinder of Borrower or any other
party in any action to obtain payment or performance of any or all
of the Guaranteed Obligations);
(xvii)
any order, ruling
or plan of reorganization emanating from proceedings under Title 11
of the United States Code with respect to Borrower or any other
Person, including any extension, reduction, composition, or other
alteration of the Guaranteed Obligations, whether or not consented
to by Administrative Agent or any Lender; or
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(xviii)
any early
termination of any of the Guaranteed Obligations;
(xix)
Administrative
Agent’s enforcement or forbearance from enforcement of the
Guaranteed Obligations on a net or gross basis;
(xx)
any invalidity,
irregularity or unenforceability in whole or in part (including
with respect to any netting provision) of any Interest Rate
Protection Agreement or any confirmation, instrument or agreement
required thereunder or related thereto, or any transaction entered
into thereunder, or any limitation on the liability of Borrower
thereunder or any limitation on the method or terms of payment
thereunder which may now or hereafter be caused or imposed in any
mariner whatsoever; or
(xxi)
any other
condition, event, omission, action or inaction that would in the
absence of this Section 3(a) result in the release or
discharge of Guarantor from the performance or observance of any
obligation, covenant or agreement contained in this Guaranty or any
other agreement.
(b)
In the event any
payment by Borrower or any other Person to Administrative Agent or
any Lender is held to constitute a preference, fraudulent transfer
or other voidable payment under any bankruptcy, insolvency or
similar law, or if for any other reason Administrative Agent or any
Lender is required to refund such payment or pay the amount thereof
to any other party, such payment by Borrower or any other party to
Administrative Agent or such Lender shall not constitute a release
of Guarantor from any liability hereunder, and this Guaranty shall
continue to be effective or shall be reinstated (notwithstanding
any prior release, surrender or discharge by Administrative Agent
or any Lender of this Guaranty or of Guarantor), as the case may
be, with respect to, and this Guaranty shall apply to, any and all
amounts so refunded by Administrative Agent or any Lender or paid
by Administrative Agent or any Lender to another Person (which
amounts shall constitute part of the Guaranteed Obligations), and
any interest paid by Administrative Agent or any Lender and any
attorneys’ fees, costs and expenses paid or incurred by
Administrative Agent or any Lender in connection with any such
event. It is the intent of Guarantor, Administrative Agent and
Lenders that the obligations and liabilities of Guarantor hereunder
are absolute and unconditional under any and all circumstances and
that until the Guaranteed Obligations are fully and finally paid,
and not subject to refund or disgorgement, the obligations and
liabilities of Guarantor hereunder shall not be discharged or
released, in whole or in part, by any act or occurrence that might,
but for the provisions of this Guaranty, be deemed a legal or
equitable discharge or release of a guarantor. Administrative Agent
shall be entitled to continue to hold this Guaranty in its
possession for the benefit of Lenders for a period of one year from
the date the Guaranteed Obligations are paid in fall and for so
long thereafter as may be necessary to enforce any obligation of
Guarantor hereunder and/or to exercise any right or remedy of
Administrative Agent or Lenders hereunder.
(c)
If acceleration
of the time for payment of any amount payable by Borrower under the
Note, the Loan Agreement, or any other Loan Document is stayed or
delayed by any law or tribunal, all such amounts shall nonetheless
be payable by Guarantor on demand by Administrative Agent or
Lenders.
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(d)
Guarantor further
waives: (i) any defense to the recovery by Administrative
Agent or Lenders against Guarantor of any deficiency or otherwise
to the enforcement of this Guaranty or any security for this
Guaranty based upon the election by Administrative Agent or Lenders
of any remedy against Guarantor or Borrower, including the defense
to enforcement of this Guaranty (the so-called
“Gradsky” defense) which, absent this waiver, Guarantor
would have by virtue of an election by Administrative Agent or
Lenders to conduct a non-judicial foreclosure sale (also known as a
“trustee’s sale”) of any real property security
for the Indebtedness, it being understood by Guarantor that any
such non-judicial foreclosure sale will destroy, by operation of
California Code of Civil Procedure (“CCP”)
Section 580d, all rights of any party to a deficiency judgment
against Borrower and, as a consequence, will destroy all rights
that Guarantor would otherwise have (including the right of
subrogation, the right of reimbursement, and the right of
contribution) to proceed against Borrower; (ii) any defense or
benefits that may be derived from CCP Sections 580a, 580b, 580d or
726, or comparable provisions of the laws of any other jurisdiction
and all other anti deficiency and one form of action defenses under
the laws of California and any other jurisdiction; and
(iii) any right to a fair value hearing under CCP
Section 580a, or any other similar law, to determine the size
of any deficiency owing (for which Guarantor would be liable
hereunder) following a non-judicial foreclosure sale.
(e)
Without limiting
the foregoing or anything else contained in this Guaranty,
Guarantor waives all rights and defenses that Guarantor may have
because the Guaranteed Obligations are secured by real property.
This means, among other things:
(i)
That
Administrative Agent or Lenders may collect from Guarantor without
first foreclosing on any real or personal property collateral
pledged by Borrower; and
(ii)
If Administrative
Agent, for the benefit of Lenders, forecloses on any real property
collateral pledged by Borrower: (A) the amount of the
Guaranteed Obligations may be reduced only by the price for which
that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price; and
(B) Administrative Agent and/or Lenders may collect from
Guarantor even if Administrative Agent, by foreclosing on the real
property collateral for Lenders’ benefit, has destroyed any
right Guarantor may have to collect from Borrower.
This is an unconditional and irrevocable waiver
of any rights and defenses that Guarantor may have because the
Guaranteed Obligations are secured by real property. These rights
and defenses include, but are not limited to, any rights or
defenses based upon Sections 580a, 580b, 580d, or 726 of the
CCP.
(f)
Guarantor waives
all rights and defenses arising out of an election of remedies by
Administrative Agent or Lenders, even though that election of
remedies, such as a nonjudicial foreclosure with respect to
security for a guaranteed obligation, has destroyed
Guarantor’s rights of subrogation and reimbursement against
Borrower by operation of Section 580d of the CCP or
otherwise.
(g)
Guarantor waives
Guarantor’s rights of subrogation and reimbursement,
including (i) any defenses Guarantor may have by reason of an
election of remedies by
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Administrative Agent or
Lenders, and (ii) any rights or defenses Guarantor may have by
reason of protection afforded to Borrower with respect to the
Guaranteed Obligations pursuant to the anti-deficiency or other
laws of California limiting or discharging Borrower’s
obligations, including Sections 580a, 580b, 580d or 726 of the
CCP.
(h)
Guarantor waives
any rights, defenses and benefits that may be derived from Sections
2787 to 2855, inclusive, of the California Civil Code or comparable
provisions of the laws of any other jurisdiction and further waives
all other suretyship defenses Guarantor would otherwise have under
the laws of California or any other jurisdiction.
(i)
No provision or
waiver in this Guaranty shall be construed as limiting the
generality of any other provision or waiver contained in this
Guaranty. All of the waivers contained herein are irrevocable and
unconditional and are intentionally and freely made by
Guarantor.
4.
Subordination,
lf, for any reason whatsoever, Borrower is now or hereafter becomes
indebted to Guarantor:
(a)
such indebtedness
and all interest thereon and all liens, security interests and
rights now or hereafter existing with respect to property of
Borrower securing such indebtedness shall, at all times, be
subordinate in all respects to the Guaranteed Obligations and to
all liens, security interests and rights now or hereafter existing
to secure the Guaranteed Obligations;
(b)
Guarantor shall
not be entitle
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