Exhibit 10.110
COMMERCIAL GUARANTY
P1-71414.”
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Principal
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Loan Date
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Maturity
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Loan No.
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Call / Coll
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Account
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Officer
7-10
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Initials
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References in the boxes above are
for Lender’s use only and do not limit the applicability of
this document to any particular loan or lie An item above
containing **** has been omitted due to text length
limitations
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Borrower:
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KW Indigo Land, LLC, a Delaware
limited liability company
9601 Wilshire Boulevard,
Suite 220
Beverly Hills, CA 90210
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Lender:
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Pacific Western Bank
Beverly Hills Office
9454 Wilshire Boulevard
Beverly Hills, GA 90212
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Guarantor:
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Kennedy-Wilson, Inc., a
De/aware corporation
9601 Wilshire Boulevard,
Suite 220
Beverly Hills, CA 90210
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CONTINUING GUARANTEE OF PAYMENT
AND PERFORMANCE . For
good and valuable consideration, Guarantor absolutely and
unconditionally guarantees full and punctual payment and
satisfaction of the Indebtedness of Borrower to Lender, and the
performance and discharge of all Borrower’s obligations under
the Note and the Related Documents. This Is a guaranty of payment
and performance and not of collection, so Lender can enforce this
Guaranty against Guarantor even when Lender has not exhausted
Lender’s remedies against anyone else obligated to pay the
Indebtedness or against any collateral securing the Indebtedness,
this Guaranty or any other guaranty of the Indebtedness. Guarantor
will make any payments to Lender or its order, on demand, In legal
tender of the United States of America, in same-day funds, without
set-off or deduction or counterclaim, and will otherwise perform
Borrower’s obligations under the Note and Related Documents.
Under this Guaranty, Guarantor’s liability is unlimited and
Guarantor’s obligations are continuing.
INDEBTEDNESS
. The word
“Indebtedness” as used in this Guaranty means all of
the principal amount outstanding from time to time and at any one
or more times, accrued unpaid interest thereon and all collection
costs and legal expenses related thereto permitted by law,
attorneys’ fees, arising from any and all debts, liabilities
and obligations of every nature or form, now existing or hereafter
arising or acquired, that Borrower individually or collectively or
interchangeably with others, owes or will owe Lender.
“Indebtedness’’ includes, without limitation,
loans, advances, debts, overdraft indebtedness, credit card
Indebtedness, lease obligations, liabilities and obligations under
any interest rate protection agreements or foreign currency
exchange agreements or commodity price protection agreements, other
obligations, and liabilities of Borrower, and any present or future
judgments against Borrower, future advances, loans or transactions
that renew, extend, modify, refinance, consolidate or substitute
these debts, liabilities and obligations whether. voluntarily or
involuntarily incurred; due or to become due by their terms or
acceleration; absolute or contingent; liquidated or unliquidated;
determined or undetermined; direct or indirect; primary or
secondary in nature or arising from a guaranty or surety; secured
or unsecured; joint or several or joint and several; evidenced by a
negotiable or non-negotiable instrument or writing; originated by
Lender or another or others; barred or unenforceable against
Borrower for any reason whatsoever; for any transactions that may
be voidable for any reason (such as Infancy, Insanity, ultra vires
or otherwise); and originated then reduced or extinguished and than
afterwards increased or reinstated.
If Lender presently holds one or
more guaranties, or hereafter receives additional guaranties from
Guarantor, Lender’s rights under all guaranties shall be
cumulative. This Guaranty shall not (unless specifically provided
below to the contrary) affect or invalidate any such other
guaranties. Guarantor’s liability will be Guarantor’s
aggregate liability under the terms of this Guaranty and any such
other unterminated guaranties.
CONTINUING GUARANTY
. THIS IS A ‘CONTINUING
GUARANTY’ UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL
AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OP THE
INDEBTEDNESS OF BORROWER TO LENDER NOW EXISTING OR HEREAFTER
ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY,
ANY PAYMENTS MADE ON THE INDEBTEDNESS WILL NOT DISCHARGE OR
DIMINISH GUARANTOR’S OBLIGATIONS AND LIABILITY UNDER THIS
GUARANTY FOR ANY REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN
ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO
BALANCE FROM TIME TO TIME.
DURATION OF GUARANTY
. This Guaranty will take effect
when received by Lender without the necessity of any acceptance by
Lender, or any notice to Guarantor or to Borrower, and wilt
continue in full force until all the Indebtedness incurred or
contracted before receipt by Lender of any notice of
revocation shall have been fully and finally paid and satisfied and
all of Guarantor’s other obligations under this Guaranty
shall have been performed in full. If Guarantor elects to revoke
this Guaranty, Guarantor may only do so in writing.
Guarantor’s written notice of revocation must be mailed to
Lender, by certified mail, at Lender’s address listed above
or such other place as Lender may designate in writing, Written
revocation of this Guaranty will apply only to new Indebtedness
created after actual receipt by Lender of Guarantor’s written
revocation. For this purpose arid without limitation, the teen
“new Indebtedness” does not include the Indebtedness
which at the time of notice of revocation is contingent,
unliquidated, undetermined or not due and which later becomes
absolute, liquidated, determined or due. For this purpose and
without limitation, “new Indebtedness” does not include
all or part of the Indebtedness that is incurred by Borrower prior
to revocation; incurred under a commitment that became binding
before revocation; any renewals, extensions, substitutions, arid
modifications of the Indebtedness. This Guaranty shall bind
Guarantor’s estate as to the Indebtedness created both before
and after Guarantor’s death or incapacity, regardless of
Lender’s actual notice of Guarantor’s death. Subject to
the foregoing, Guarantor’s executor or administrator or other
legal representative may terminate this Guaranty in the same manner
in which Guarantor might have terminated It and with the same
effect. Release of any other guarantor or termination of any other
guaranty of the indebtedness shall not affect the liability of
Guarantor under this Guaranty. A revocation Lender receives from
any one or more Guarantors shall not affect the liability of any
remaining Guarantors under this Guaranty. Guarantor’s
obligations under this Guaranty shall be in addition to any of
Guarantor’s obligations, or any of thorn, under any other
guaranties of the indebtedness or any other person heretofore or
hereafter given to Lender unless such other guaranties are modified
or revoked In writing; and this Guarantor shall riot, unless
provided In this Guaranty, affect, Invalidate, or supersede any
such other guaranty. It Is anticipated that fluctuations may occur
In the aggregate amount of the Indebtedness covered by this
Guaranty, and Guarantor specifically acknowledges and agrees that
reductions in the amount of the indebtedness, even to zero dollars
($0.00), shall not constitute a termination of this Guaranty. This
Guaranty IS binding upon Guarantor and Guarantor’s heirs,
successors and assigns so fang as any of the Indebtedness remains
unpaid and even though the Indebtedness may from time to time be
zero dollars ($0.00).
GUARANTOR’S AUTHORIZATION
TO LENDER . Guarantor
authorizes Lender, either before or after any revocation hereof,
without notice or demand
and without lessening
Guarantor’s liability under this Guaranty, from time to time:
(A) prior to revocation as sat forth above, to make one or
more additional secured or unsecured loans to Borrower, to lease
equipment or other goods to Borrower, or otherwise to extend
additional credit to Borrower, (B) to alter, compromise,
renew, extend, accelerate, or otherwise change one or more times
the time for payment or other terms of the Indebtedness or any part
of the Indebtedness, including increases and decreases of the rate
of Interest on the Indebtedness; extensions may be repeated and may
be for longer than the original loan ten-n; (C) to take and
hold security for the payment of this Guaranty or the Indebtedness,
and exchange, enforce, waive, subordinate, fail Or decide not to
perfect, and release any such security, with or without the
substitution of new collateral; (0) to release, substitute, agree
not to sue, or deal with any one or more of Borrower’s
sureties, endorsers, or other guarantors on any terms or In any
manner Lender may choose; (E) to determine how, when and what
application of payments and credits shall be made on the
Indebtedness; (F) to apply such security and direct the order
or manner of sale thereof, including
without limitation, any nonjudicial
sale permitted by the terms of the controlling security agreement
or deed of trust, as Lender in its discretion may determine;
(G) to sell, transfer, assign or grant participations in all
or any part of the Indebtedness; and (H) to assign or transfer
this Guaranty in whole or In part.
GUARANTOR’S REPRESENTATIONS
AND WARRANTIES .
Guarantor represents and warrants to Lender that (A) no
representations or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this
Guaranty; (B) this Guaranty is executed at Borrower’s
request and not at the request of Lender; (C) Guarantor has
full power, right and authority to enter into this Guaranty; (D)
the provisions of this Guaranty do not conflict with or result in a
default under any agreement or other instrument binding upon
Guarantor and do not result in a violation of any law, regulation,
court decree or order applicable to Guarantor; (E) Guarantor
has not and will not, without the prior written consent of Lender,
sell, lease, assign, encumber, hypothecate, transfer, or otherwise
dispose of all or substantially all of Guarantor’s assets, or
any interest therein; (F) upon Lender’s request,
Guarantor will provide to Lender financial and credit information
in form acceptable to Lender, and all such financial Information
which currently has been, and all future financial information
which will be provided to Lender is and will be true and correct In
all material respects and fairly present Guarantor’s
financial condition as of the dates the financial information is
provided; (G) no material adverse change has occurred in
Guarantor’s financial condition since the date of the most
recent financial statements provided to Lender and no event has
occurred which may materially adversely affect Guarantor’s
financial condition; (H) no litigation, claim, investigation,
administrative proceeding or similar action (including those for
unpaid taxes) against Guarantor is pending or threatened;
(I) Lender has made no representation to Guarantor as to the
creditworthiness of Borrower; and (J) Guarantor has
established adequate means of obtaining from Borrower on a
continuing basis information regarding Borrower’s financial
condition. Guarantor agrees to keep adequately Informed from such
means of any facts, events, or circumstances which might in any way
affect Guarantor’s risks under this Guaranty, and Guarantor
further agrees that, absent a request for Information, Lender shall
have no obligation to disclose to Guarantor any information or
documents acquired by Lender in the course of Its relationship with
Borrower.
GUARANTOR’S FINANCIAL
STATEMENTS . Guarantor
agrees to furnish Lender with the following:
Additional Requirements.
(I) Financial
Statements:
ANNUAL STATEMENTS
. Guarantor to provide Lender with,
as soon as available, but In no event later than one hundred fifty
(150) days after the end of each fiscal year end, consolidated
balance sheet and income statement for the period ended in form
satisfactory to Lender, audited by a CPA acceptable to Lender.
Statements may be due more often If requested by Lender.
INTERIM STATEMENTS
. Guarantor shall provide to Lender,
as soon
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