Exhibit 5.1
| 355 South Grand Avenue Los Angeles, California 90071-1560 Tel: +1.213.485.1234 Fax: +1.213.891.8763 www.lw.com
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October 5, 2011 | Abu Dhabi Barcelona Beijing Boston Brussels Chicago Doha Dubai Frankfurt Hamburg Hong Kong Houston London Los Angeles Madrid Milan | Moscow Munich New Jersey New York Orange County Paris Riyadh Rome San Diego San Francisco Shanghai Silicon Valley Singapore Tokyo Washington, D.C.
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Kennedy-Wilson, Inc.
9701 Wilshire Blvd., Suite 700
Beverly Hills, CA 90212
| Re: | Registration Statement on Form S-4; Exchange Offer for up to $250,000,000 in |
Aggregate Principal Amount of Kennedy-Wilson, Inc.’s 8.750% Senior Notes Due 2019
Ladies and Gentlemen:
We have acted as special counsel to Kennedy-Wilson, Inc., a Delaware corporation (the “Company”), in connection with the issuance of up to $250,000,000 in aggregate principal amount of its 8.750% Senior Notes due 2019 (the “Exchange Notes”) and the guarantees of the Exchange Notes (the “Guarantees”) by each of the entities listed onExhibit A hereto (the “Guarantors”), under an indenture, dated as of April 5, 2011 (the “Indenture”), among the Company, the guarantors set forth in the signature pages thereto and Wilmington Trust FSB, as trustee (the “Trustee”), and pursuant to a registration statement on Form S-4 under the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange Commission (the “Commission”) on October 5, 2011 (the “Registration Statement”). The Exchange Notes and the Guarantees will be issued in exchange for the Company’s outstanding 8.750% Senior Notes due 2019 (the “Private Notes”), and the related guarantees, on the terms set forth in the prospectus contained in the Registration Statement (the “Prospectus”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or Prospectus, other than as expressly stated herein with respect to the issue of the Exchange Notes and Guarantees.
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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 State of New York, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or as to any matters of municipal law or the laws of any local agencies within any state. Various matters concerning the laws of the States of California, Delaware and Illinois are addressed in the letter of Kulik, Gottesman, Mouton & Siegel, 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, when the Exchange Notes have been duly executed, issued and authenticated in accordance with the terms of the Indenture and delivered in exchange for the Private Notes in the circumstances contemplated by the Registration Statement and Prospectus, the Exchange Notes and the Guarantees will be legally valid and binding obligations of the Company and the Guarantors, respectively, enforceable against the Company and the Guarantors in accordance with their respective terms.
Our opinion is 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 to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies or judicial relief, (c) the waiver of rights or defenses contained in Section 6.15 of the 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 the Exchange Notes, collection of that portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon, (f) 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, (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) covenants not to compete, (j) provisions for exclusivity, election or cumulation of rights or remedies, (k) provisions authorizing or validating conclusive or discretionary determinations, (l) grants of setoff rights, (m) proxies, powers and trusts, (n) provisions prohibiting, restricting, or requiring consent to
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assignment or transfer of any right or property, and (o) the severability, if invalid, of provisions to the foregoing effect. We express no opinion or confirmation as to federal or state securities laws, tax laws, antitrust or trade regulation laws, insolvency or fraudulent transfer laws, antifraud laws, compliance with fiduciary duty requirements, pension or employee benefit laws, usury laws, environmental laws, margin regulations, FINRA rules or stock exchange rules (without limiting other laws excluded by customary practice).
With your consent, we have assumed (a) that the Indenture, the Exchange Notes and the Guarantees (collectively, the “Documents”) have been duly authorized, executed and delivered by the parties thereto, (b) that the Documents constitute legally valid and binding obligations of the parties thereto other than the Company and each of the Guarantors, enforceable against each of them in accordance with their terms, and (c) that the status of the Documents as legally valid and binding obligations of the parties is not affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders or (iii) failures to obtain required consents, approvals or authorizations from, or make required registrations, declarations or filings with, governmental authorities.
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 this opinion as an exhibit to the Registration Statement and to the reference to our firm contained in the Prospectus under the heading “Legal Matters.” 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/ Latham & Watkins LLP
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Exhibit A
Guarantors |
1. Kennedy-Wilson Holdings, Inc., a Delaware corporation |
2. Kennedy-Wilson Properties, Ltd., a Delaware corporation |
3. Kennedy-Wilson Property Services, Inc., a Delaware corporation |
4. Kennedy-Wilson Property Services II, Inc., a Delaware corporation |
5. Kennedy Wilson Property Services III, L.P., a Delaware limited partnership |
6. Kennedy-Wilson Property Equity, Inc., a Delaware corporation |
7. Kennedy-Wilson Property Equity II, Inc., a Delaware corporation |
8. Kennedy-Wilson Property Special Equity, Inc., a Delaware corporation |
9. Kennedy-Wilson Property Special Equity II, Inc., a Delaware corporation |
10. Kennedy-Wilson Property Special Equity III, LLC, a Delaware limited liability company |
11. K-W Properties, a California corporation |
12. Kennedy Wilson Property Services III GP, LLC, a Delaware limited liability company |
13. KW BASGF II Manager, LLC, a Delaware limited liability company |
14. KWF Investors I, LLC, a Delaware limited liability company |
15. KWF Investors II, LLC, a Delaware limited liability company |
16. KWF Investors III, LLC, a Delaware limited liability company |
17. KWF Manager I, LLC, a Delaware limited liability company |
18. KWF Manager II, LLC, a Delaware limited liability company |
19. KWF Manager III, LLC, a Delaware limited liability company |
20. Kennedy Wilson Overseas Investments, Inc., a Delaware corporation |
21. Fairways 340 Corp., a Delaware corporation |
22. KW - Richmond, LLC, a Delaware limited liability company |
23. Pacifica West Coast Partners, LLC, a California limited liability company |
24. SG KW Venture I Manager LLC, a Delaware limited liability company |
25. KW Loan Partners I LLC, a Delaware limited liability company |
26. KW Loan Partners II LLC, a California limited liability company |
27. KW Sunrise Carlsbad, LLC, a Delaware limited liability company |
28. Sunrise Property Associates, LLC, a Delaware limited liability company |
29. KW Summer House Manager, LLC, a Delaware limited liability company |
30. KW Mill Creek Property Manager, LLC, a California limited liability company |
31. KW Montclair, LLC, a Delaware limited liability company |
32. KW Blossom Hill Manager, LLC, a Delaware limited liability company |
33. KW Serenade Manager, LLC, a Delaware limited liability company |
34. K-W Santiago Inc., a California corporation |
35. KW Anaheim Land Partners LLC, a Delaware limited liability company |
36. KW Redmond Manager, LLC, a Delaware limited liability company |
37. Dillingham Ranch Aina LLC, a Delaware limited liability company |
38. 68-540 Farrington, LLC, a Delaware limited liability company |
39. KW Dillingham Aina LLC, a Delaware limited liability company |
40. Kennedy Wilson Fund Management Group, LLC, a California limited liability company |
41. Kennedy-Wilson International, a California corporation |
42. Kennedy-Wilson Tech, Ltd., a California corporation |
43. KW Multi-Family Management Group, a Delaware corporation |
44. KWP Financial I, a California corporation |
45. Kennedy-Wilson Properties, LTD, an Illinois corporation |
46. Kennedy Wilson Auction Group Inc., a California corporation |
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47. KWF Manager IV, LLC, a Delaware limited liability company |
48. KWF Manager V, LLC, a Delaware limited liability company |
49. KW Ireland, LLC, a Delaware limited liability company |
50. Kennedy Wilson Property Equity IV, LLC, a Delaware limited liability company |
51. KW Residential Group, Inc., a Delaware corporation |
52. KWF Fund IV—Kohanaiki, LLC, a Delaware limited liability company |
53. KW Telstar Partners, LLC, a Delaware limited liability company |
54. KWF Investors IV, LLC, a Delaware limited liability company |
55. KWF Investors V, LLC, a Delaware limited liability company |