Exhibit 5.2
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KULIK, GOTTESMAN & SIEGEL, LLP
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| | | Attorneys at Law Comerica Bank Building 15303 Ventura Boulevard Suite 1400 Sherman Oaks, California 91403 www.kgmslaw.com | | |
| | | Telephone | (310) 557-9200 |
| | | | (818) 817-3600 |
| | | Facsimile | (310) 557-0224 |
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Real Estate Department File No. | | e-mail | gfuller@kgslaw.com |
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| | | November 28, 2012 | | |
Kennedy-Wilson Holdings, Inc.
and
Kennedy-Wilson, Inc.
9701 Wilshire Blvd., Suite 700
Beverly Hills, CA 90212
Re: 7.75% Senior Notes due 2042
Ladies and Gentlemen:
We have acted as special counsel to Kennedy-Wilson, Inc., a Delaware corporation (the “Company”), in connection with the offer and sale to the underwriters (the “Underwriters”) named in Schedule A to the Underwriting Agreement (the “Underwriting Agreement”), dated as of November 20, 2012, among the Underwriters, the Company and the Guarantors (as defined below), of $50,000,000 aggregate principal amount of the Company's 7.75% Senior Notes due 2042 (the “Notes”) pursuant to the Underwriting Agreement. The Notes are being issued pursuant to an indenture (the “Base Indenture”), dated as of November 28, 2012, between the Company and Wilmington Trust, National Association, as trustee (the “Trustee”), as supplemented by a supplemental indenture (the “Supplemental Indenture,” and, together with the Base Indenture, the “Indenture”), dated as of November 28, 2012, among the Company, the guarantor parties thereto (the “Guarantors”) and the Trustee. The Notes will be guaranteed (the “Guarantees,” and, together with the Notes, the “Securities”) by the Guarantors.
The offer and sale of the Securities is being made pursuant to a registration statement on Form S-3 (File No. 333-184752) under the Securities Act of 1933, as amended (the “Act”) initially filed with the Securities and Exchange Commission (the “Commission”) on November 5, 2012 (such registration statement, as amended, the “Registration Statement”), and a prospectus supplement (the “Prospectus Supplement”) filed by the Company with the Commission on November 21, 2012.
KULIK, GOTTESMAN & SIEGEL, LLP
Kennedy-Wilson, Inc.
November 28, 2012
Page 2
This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act. No opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the Prospectus Supplement, other than as expressly stated herein with respect to the issue of the Securities.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company, the Guarantors and others as to factual matters without having independently verified such factual matters.
We are opining herein as to the internal laws of the States of California and Illinois, the General Corporation Law of the State of Delaware and the Delaware Limited Liability Act, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or, in the case of California, Delaware and Illinois, any other laws, or as to any matters of municipal law or the laws of any local agencies within any state; provided, however, that we are admitted to practice law only in the State of California and have assumed without further inquiry that the laws of the State of Illinois are substantially similar to and would lead to the same result as those of the State of California in respect of the opinions contained herein and base our opinions upon such assumption. Various matters concerning the laws of the State of New York are addressed in the letter of Latham & Watkins LLP, which has been separately provided to you. We express no opinion with respect to those matters herein and to the extent elements of those opinions are necessary to the conclusions expressed herein, we have, with your consent, assumed such matters.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, the certificate representing the Notes has been duly executed and delivered by the Company, and, when duly authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters against payment therefor in accordance with the Underwriting Agreement, (a) the Notes will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and (b) the Guarantees will be legally valid and binding obligations of the respective Guarantors, enforceable against the respective Guarantors in accordance with their terms.
Our opinions are subject to: (i) the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and remedies of creditors; (ii) the effect of general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding is brought; (iii) the invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy; and (iv) we express no opinion as to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty, (b) consents
KULIK, GOTTESMAN & SIEGEL, LLP
Kennedy-Wilson, Inc.
November 28, 2012
Page 3
to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies or judicial relief, (c) waivers of rights or defenses, including those contained in Section 4.4 of the Base Indenture, (d) any provision requiring the payment of attorneys' fees, where such payment is contrary to law or public policy, (e) any provision permitting, upon acceleration of any Security, collection of that portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon, (f) the creation, validity, attachment, perfection, or priority of any lien or security interest, (g) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights, (h) waivers of broadly or vaguely stated rights, (i) provisions for exclusivity, election or accumulation of rights or remedies, (j) provisions authorizing or validating conclusive or discretionary determinations, (k) grants of setoff rights, (l) proxies, powers and trusts, (m) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property, (n) provisions purporting to make a guarantor primarily liable rather than as a surety, (o) provisions purporting to waive modifications of any guaranteed obligation to the extent such modification constitutes a novation, (p) any provision to the extent it requires that a claim with respect to a security denominated in other than U.S. dollars (or a judgment in respect of such a claim) be converted into U.S. dollars at a rate of exchange at a particular date, to the extent applicable law otherwise provides, (q) provisions purporting to make a guarantor primarily liable rather than as a surety and provisions purporting to waive modifications of any guaranteed obligation to the extent such modification constitutes a novation and (r) the severability, if invalid, of provisions to the foregoing effect. We are not passing upon the creation, validity, attachment, perfection, or priority of any lien or security interest.
With your consent, we have assumed that (i) each of the Base Indenture and the Supplemental Indenture has been duly authorized, executed and delivered by the Trustee, (ii) each of the Base Indenture and the Supplemental Indenture constitutes legally valid and binding obligations of the Trustee, enforceable against the Trustee in accordance with their respective terms, and (iii) the status of each of the Base Indenture and the Supplemental Indenture as legally valid and binding obligations of the parties will not be affected by any (a) breaches of, or defaults under, agreements or instruments, (b) violations of statutes, rules, regulations or court or governmental orders, or (c) failures to obtain required consents, approvals or authorizations from, or to make required registrations, declarations or filings with, governmental authorities.
KULIK, GOTTESMAN & SIEGEL, LLP
Kennedy-Wilson, Inc.
November 28, 2012
Page 4
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing of this opinion as an exhibit to a Current Report on Form 8-K that will be incorporated by reference into the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ KULIK, GOTTESMAN & SIEGEL, LLP
