Exhibit 10.107
REPAYMENT
GUARANTY
This REPAYMENT GUARANTY (this “
Guaranty” ) is made as of September 4, 2007, by
KENNEDY-WILSON, INC., a Delaware corporation (
“Guarantor” ) in favor of WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association, as agent for
the “Lenders” pursuant to the Loan Agreement described
below (in such capacity, “ Administrative Agent”
) and in favor of each party that now or hereafter is bound under
the Loan Agreement as a “Lender” (referred to herein
individually as a “ Lender ” and collectively as
the “Lenders”).
1.
Except as otherwise provided in this
Guaranty, initially capitalized terms used in this Guaranty without
definition are defined in.that certain Loan Agreement of even date
herewith by and between One Baxter Way, L.P., a Delaware limited
partnership, and KW Portfolio XIII LLC, a Delaware limited
liability company (collectively, “ Borrower”) ,
Administrative Agent and Lenders (the “ Loan
Agreement”) .
2.
In order to induce Administrative
Agent and Lenders to enter into the Loan Agreement and to induce
Lenders to loan to Borrower (whether acting on behalf of itself or
any estate created by the commencement of a case under Title 11
United States Code or any successor statute thereto (the “
Bankruptcy Code” ) or any other
insolvency, bankruptcy, reorganization or liquidation proceeding,
or by any trustee under the Bankruptcy Code, liquidator,
sequesirator or receiver of Borrower or Borrower’s property
or similar Person duly appointed pursuant to any law generally
governing any insolvency, bankruptcy, reorganization, liquidation,
receivership or like proceeding) the sum of $7,028,960.00 (the
“Loan”), evidenced by one or more secured promissory
notes (collectively, the “Notes”), in the aggregate
principal amount of $7,028,960.00, each now or hereafter executed
by Borrower and payable to the order of one or more Lenders,
Guarantor hereby unconditionally and irrevocably guarantees to
Administrative Agent and Lenders and to their successors, endorsees
and/or assigns, the Ml and prompt payment of(a) the principal
sum of the Notes in accordance with their terms when due, by
acceleration or otherwise, together with all interest accrued
thereon, when due under the terms of the Notes, and any and all
other sums of money that become owing by Borrower to Lenders under
the Notes, Loan Agreement or any other “Loan Document”
as such term is defined in the Loan Agreement (which Notes, Loan
Agreement and other “Loan Documents” are also
collectively referred to herein as the “ Loan
Documents” ) and (b) any and all sums owing under
any “Swap Contract” as such term is defined in the Loan
Agreement ( “Swap Contract”) . The obligations
guaranteed pursuant to this Section 2 are hereinafter referred
to as the “ Guaranteed Obligations. ”
3.
In accordance with California Civil
Code (“CC”) Section 2856:
(a)
Guarantor waives any and all rights
of subrogation, reimbursement, indemnification and contribution,
and any other rights and defenses that are or may become available
to Guarantor by reason of CC Sections 2787 to 2855, inclusive, 2899
and 3433, including, without limitation, any and all rights or
defenses Guarantor may have by reason o. protection afforded to the
principal with respect to any of the Guaranteed Obligations or to
any other guarantor of any of the Guaranteed Obligations with
respect to such guarantor’s obligations
under its guaranty, in either case,
pursuant to the antideficiency or other laws of this state limiting
or discharging the principal’s indebtedness or such other
guarantor’s obligations, including, without limitation,
California Code of Civil Procedure (“CC”) Sections
580a, 580b, 580d or 726; and
(b)
Guarantor waives all rights and
defenses that Guarantor may have because Borrower’s debt is
secured by real property. This means, among other
things:
(i)
Administrative Agent and Lenders may
collect from Guarantor without first foreclosing on any real or
personal property collateral pledged by Borrower
(ii)
If Administrative Agent or any
Lender forecloses on any real property collateral pledged by
Borrower:
(A)
The amount of the debt 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;
(B)
Administrative Agent and Lenders may
collect from Guarantor even if Administrative Agent or any Lender,
by foreclosing on the real property collateral, has destroyed any
right Guarantor may have to collect from Borrower.
This is an unconditional and
irrevocable waiver of any rights and defenses Guarantor may have
because Borrower’s debt is secured by real property. These
rights and defenses include, but are not limited to, any rights or
defenses based upon CCP Sections 580a, 580b, 580d, or 726;
and
(c)
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 the Guaranteed
Obligations, has destroyed Guarantor’s rights of subrogation
and reimbursement against Borrower by the operation of CCP
Section 580d or otherwise, and even though that election of
remedies by Administrative Agent or Lenders has destroyed
Guarantor’s rights of contribution against another guarantor
of any of the Guaranteed Obligations.
No other provision of this Guaranty
shall be construed as limiting the generality of any of the
covenants and waivers set forth in this Section 3.
4.
Guarantor represents and warrants to
Administrative Agent and Lenders that Guarantor has a finaneial
interest in Borrower or is otherwise affiliated with Borrower. In
that regard, Guarantor agrees that Administrative Agent’s and
Lenders’ entering into the Loan Agreement and Lenders’
agreement to make the Loan to Borrower is of substantial and
material benefit to Guarantor and further agrees as
follows:
(a)
Guarantor shall continue to be liable under this Guaranty and the
provisions hereof will remain in full force and effect
notwithstanding (i) any modification, agreement or stipulation
between Borrower and Administrative Agent or their respective
successors and assigns, with respect to the Loan Documents or the
Swap Contracts or the obligations encompassed thereby, including,
without limitation, the Guaranteed Obligations,
(ii) Administrative Agent’s waiver of or failure to
enforce any of the terms, covenants or conditions contained in the
Loan Documents or the Swap Contracts or in any modification
thereof; (iii) any discharge or release of Borrower or any
other guarantor from any liability with respect to the Guaranteed
Obligations, (iv) any discharge, release, exchange or
subordination of any real or personal property then held by
Administrative Agent or any Lender as security for the performance
of the Guaranteed Obligations, (v) any additional security
taken for the Guaranteed Obligations, whether real or personal
property, (vi) any foreclosure or other realization on any
security for the Guaranteed Obligations, regardless of the effect
upon Guarantor’s subrogation, contribution or reimbursement
rights against Borrower or any other guarantor, (vii) any
additional loans or financial accommodations to Borrower or
(viii) the manner or order by which payments are applied to
principal, interest or other obligations under the Loan Documents
and the Swap Contracts. Without limiting the generality of the
foregoing, Guarantor hereby waives the rights and benefits under CC
Section 2819, and agrees that by doing so Guarantor’s
liability shall continue even if Administrative Agent or any Lender
alters any obligations under the Loan Documents or the Swap
Contracts in any respect or Administrative Agent’s or
Lenders’ remedies or rights against Borrower are in any way
impaired or suspended without Guarantor’s consent.
(b)
Guarantor’s liability under
this Guaranty shall continue until all sums due under the Notes
have been paid in full and until all Guaranteed Obligations to
Administrative Agent and Lenders have been satisfied, and shall not
be reduced by virtue of any payment by Borrower of any amount due
under the Notes or under any of the Loan Documents or Swap
Contracts or by Administrative Agent’s and Lenders’
recourse to any collateral or security.
(c)
Guarantor represents and warrants to
Administrative Agent and Lenders that Guarantor now has and will
continue to have full and complete access to any and all
information concerning the transactions contemplated by the Loan
Documents or Swap Contracts or referred to therein, the value of
the assets owned or to be acquired by Borrower, Borrower’s
financial status and its ability to pay and perform the Guaranteed
Obligations owed to Administrative Agent and Lenders. Guarantor
further represents and warrants that Guarantor has reviewed and
approved copies of the Loan Documents and Swap Contracts and is
fully informed of the remedies Administrative Agent and Lenders may
pursue, with or without notice to Borrower, in the event of default
under the Notes or other Loan Documents or Swap Contracts. So long
as any of the Guaranteed Obligations remains unsatisfied or owing
to Administrative Agent or Lenders, Guarantor shall keep fully
informed as to all aspects of Borrower’s financial condition
and the performance of the Guaranteed Obligations.
(d)
Guarantor acknowledges and agrees
that Guarantor may be required to perform the Guaranteed
Obligations in accordance with the terms hereof notwithstanding the
fact
that the Loan has fully matured,
that the outstanding principal balance thereof is fully due and
payable and that Borrower is in default of its obligation to pay
the full amount due under the Notes on the maturity
thereof.
5.
The liability of Guarantor under
this Guaranty is a guaranty of payment and performance and not of
collectibility, and is not conditioned or contingent upon the
genuineness, validity; regularity or enforceability of the Loan
Documents, Swap Contracts or other instruments relating to the
creation or performance of the Guaranteed Obligations or the
pursuit by Administrative Agent or any Lender of any remedies which
any now has or may hereafter have with respect thereto under the
Loan Documents or Swap Contracts, at law, in equity or otherwise.
Guarantor hereby waives any and all benefits and defenses under CC
Section 2810 and agrees that by doing so Guarantor shall be
liable even if Borrower had no liability at the time of execution
of any of the Loan Documents or Swap Contracts or thereafter ceases
to be liable. Guarantor hereby waives any and all benefits and
defenses under CC Section 2809 and agrees that by doing so
Guarantor’s liability may be larger in amount and more
burdensome than that of Borrower. Guarantor’s liability
hereunder shall not be limited or affected in any way by any
impairment or any diminution or loss of value of any security or
collateral for the Loan, whether caused by hazardous substances or
otherwise, Administrative Agent’s or any Lender’s
failure to perfect a security interest in such security or
collateral or any disability or other defense of Borrower or any
other guarantor.
6.
Guarantor hereby waives to the
extent permitted by law: (i) all notices to Guarantor, to
Borrower, or to any other Person, including without limitation
notices of the acceptance of this Guaranty or the creation,
renewal, extension, modification, accrual of any of the Guaranteed
Obligations owed to Administrative Agent and Lenders, enforcement
of any right or remedy with respect thereto and notice of any other
matters relating thereto; (ii) diligence and demand of
payment, presentment, protest, dishonor and notice of dishonor;
(iii) any statute of limitations affecting Guarantor’s
liability hereunder or the enforcement thereof and (iv) all
principles or provisions of law which conflict with the terms of
this Guaranty. Guarantor further agrees that Administrative Agent
and Lenders may enforce this Guaranty upon the occurrence of an
event of default under the Notes or the other Loan Documents or
Swap Contracts (as event of default is described therein),
notwithstanding the existence of any dispute between Borrower and
Administrative Agent or any Lender with respect to the existence of
said event of default or performance of the Guaranteed Obligations
or any counterclaim, set-off or other claim which Borrower may
allege against Administrative Agent or any Lender with respect
thereto. Moreover, Guarantor agrees that Guarantor’s
obligations shall not be affected by any circumstances which
constitute a legal or equitable discharge of a guarantor or
surety.
7.
Guarantor agrees that Administrative
Agent and Lenders may enforce this Guaranty without the necessity
of resorting to or exhausting any security or collateral
(including, without limitation, pursuant to a judicial or
nonjudicial foreclosure) and without the necessity of proceeding
against Borrower or any other guarantor. Guarantor hereby waives
any and all benefits under CC Sections 2845, 2849 and 2850,
including, without limitation, the right to require Administrative
Agent or Lenders to proceed against Borrower, to proceed against
any other guarantor, to foreclose any lien on any real or personal
property, to exercise any right or remedy under the Loan Documents
and Swap Contracts, to draw upon any letter of credit issued in
connection herewith, or to pursue any other remedy or to enforce
any other right.
8.
(a)
Guarantor agrees that nothing
contained herein shall prevent Administrative Agent and Lenders
from suing on the Notes or from exercising any rights. available to
them under the Notes or under any of the other Loan Documents or
Swap Contracts and that the exercise of any of the aforesaid rights
will not constitute a legal or equitable discharge of Guarantor.
Guarantor understands that the exercise by Administrative Agent and
Lenders of certain rights and remedies contained in the Swap
Contracts and Loan Documents (such as a nonjudicial foreclosure)
may affect or eliminate Guarantor’s right of subrogation
against Borrower and that Guarantor may therefore incur a partially
or totally non-reimbursable liability hereunder nevertheless,
Guarantor hereby authorizes and empowers Administrative Agent to
exercise, in its sole discretion, any rights and remedies, or any
combination thereof, which may then be available to Administrative
Agent and Lenders, since it is the intent and purpose of Guarantor
that the obligations hereunder are absolute, independent and
unconditional under any and all circumstances. Guarantor expressly
waives any defense (which defense, if -Guarantor had not given this
waiver, Guarantor might otherwise have) to a judgment against
Guarantor by reason of a nonjudicial foreclosure sale. Without
limiting the generality of the foregoing, Guarantor hereby
expressly waives any and all benefits and defenses under
(i) CCP Section 580a (which Section, if Guarantor had not
given this waiver, would otherwise limit Guarantor’s
liability after a nonjudicial foreclosure sale to the difference
between the obligations guaranteed herein and the fair market value
of the property or interests sold at such nonjudicial foreclosure
sale), (ii) CCP Sections 580b and 580d (which Sections, if
Gua
