Exhibit 10.117
REPAYMENT
GUARANTY
THIS REPAYMENT GUARANTY (this
“ Guaranty ”) is made as of September 4,
2007, by KWI PROPERTY FUND I, L.P., a Delaware limited partnership,
and KW PROPERTY FUND II, L.P., a Delaware limited partnership
(individually and collectively, “ 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, sequestrator 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 $98,405,440.00 (the “
Loan ”), evidenced by one or more secured promissory
notes (collectively, the “ Notes ”), in the
aggregate principal amount of $98,405,440.00, 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 full 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 .”
Notwithstanding the foregoing,
Guarantor’s obligations hereunder shall in no event exceed an
amount equal to Thirty-Five Million One Hundred Forty-Four Thousand
Eight Hundred and No/100 Dollars ($35,144,800.00) (the “
Guaranteed Principal Amount ”), plus 100% of
(a) attorneys’ fees and collection costs and all other
sums other than principal owing on the Loan, (b) all amounts
owing under the Swap Contracts and (c) any deficiency, loss or
damage suffered by Lender because of: (1) Borrower’s
commission of a criminal act, (2) the failure to comply with
provisions of the Loan Documents prohibiting the sale, transfer or
encumbrance of
the Project; (3) the misapplication by
Borrower of any funds derived from the Project, including security
deposits, insurance proceeds, condemnation awards, rental income or
other income arising with respect to the Project;
(4) Borrower’s commission of waste;
(5) Borrower’s removal of collateral from the Project
without replacement, (6) Borrower’s violation of law;
(7) losses, expense or liability relating to the presence of
hazardous or toxic materials on the Project; (8) the fraud or
intentional misrepresentation by Borrower made in or in connection
with the Loan Documents or the Loan; (9) Borrower’s
voluntary or involuntary filing, or the filing against Borrower by
any party, of any proceeding for relief under any federal or state
bankruptcy, insolvency or receivership laws or any assignment for
the benefit of creditors made by Borrower not dismissed within 180
days; (10) Borrower’s interference with Lender’s
enforcement proceedings; or (11) Borrower’s collection of
rent more than one month in advance. Guarantor’s
obligations shall not be affected, impaired, lessened or released
by loans, credits or other financial accommodations now existing or
hereafter advanced by Lender to Borrower in excess of the
Guaranteed Principal Amount. In no event shall the Guaranteed
Principal Amount be reduced as a result of (a) Lender’s
foreclosure or acceptance of a deed in lieu of foreclosure with
respect to any collateral securing the Loan, or
(b) Guarantor’s payment of the Loan or any portion
thereof prior to the date when the entire Loan becomes due and
payable in full, whether at maturity or by acceleration or
otherwise. The agreement of Lender to the foregoing
limitation on Guarantor’s liability shall in no way be deemed
to limit or restrict the right of Lender to apply any sums paid by
Guarantor to any portion of the Loan.
The indebtedness guaranteed by
Guarantor hereunder shall be deemed to be the last indebtedness
which remains outstanding under the Loan Documents and the Swap
Contracts after the application of payments received from Borrower
and the application of proceeds received from the foreclosure of
the Deed of Trust and other liquidation of any collateral for the
Loan (subject to the above limitations on the maximum amount of
principal indebtedness guaranteed hereby), and Guarantor may not
claim or contend so long as any such indebtedness remains
outstanding that any payments received by Lender from Borrower or
otherwise, or proceeds received by Lender on the liquidation of the
Project, shall have reduced or discharged Guarantor’s
liability or obligations hereunder. Nothing contained in this
paragraph shall be deemed to (i) limit or otherwise impair any
of the waivers or agreements of Guarantor contained in this
Guaranty or (ii) require Lender to proceed against Borrower,
any collateral or any other Guarantor before proceeding against any
particular Guarantor (any such requirement having been specifically
waived).
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 of 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
(“ CCP ”) Sections 580a, 580b, 580d or 726;
and
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(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 financial
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
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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
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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 up
