Exhibit 10.3
LIMITED GUARANTY
THIS
LIMITED GUARANTY (“Guaranty”) is made as
of August 2, 2007, by IXYS CORPORATION, a Delaware corporation
(“Guarantor”) in favor of LASALLE BANK
NATIONAL ASSOCIATION, as Trustee for Morgan Stanley Dean Witter
Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2001-TOP1 (“Lender”).
RECITALS
| A. |
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Lender’s predecessor in interest extended a loan (the
“Loan”) to Barber Lane Associates L.P., a
California limited partnership (“Barber
Lane”), in the principal sum of EIGHT MILLION AND
NO/100THS DOLLARS ($8,000,000). The Loan is evidenced by that
certain Promissory Note Secured By Deed of Trust in the original
principal amount of the Loan, made by Borrower and payable to
Lender’s predecessor in interest and dated as of
December 21, 2000 (the “Note”) and secured
by, among other things, a deed of trust and absolute assignment of
rents and leases and security agreement (and fixture filing)
(“Deed of Trust”) on the real property
and improvements described in the Deed of Trust (which real
property and improvements are collectively referred to herein as
the “Property”) and other security
instruments, if any specified in the Note. |
| B. |
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The Loan Documents (as defined and described in the Note)
include the Note, the Deed of Trust, and such other documents
described in the Note as “Loan Documents”. The Loan
Documents have been assigned and transferred to Lender from
Lender’s predecessor in interest by mesne conveyances. |
| C. |
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Barber Lane desires to transfer the Property to IXYS BUCKEYE,
LLC, a Delaware limited liability company
(“Borrower”) and in connection with such
transfer, Borrower, with Lender’s consent, is to assume
Barber Lane’s payment and performance obligations under the
Loan Documents (the “Assumption”)
pursuant to a certain Assumption Agreement of even date herewith
(“Assumption Agreement”). |
| D. |
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As a condition precedent to Lender consenting to the transfer
of the Property and to the Assumption, Lender has required, among
other things, that Guarantor execute and deliver this Guaranty to
Lender. Guarantor has an economic interest in Borrower and will
benefit from the transfer of the Property to Borrower and
Borrower’s assumption of the Loan. |
| E. |
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This Guaranty is not one of the Loan Documents. |
| F. |
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Capitalized terms used herein and not specifically defined
herein shall have the respective meanings ascribed to those terms
in the Loan Documents (as may have been amended by the Assumption
Agreement). All references herein or in any of the Loan Documents
to Borrower shall, from and after the date hereof, refer to
Borrower as defined herein. |
THEREFORE, to induce Lender to enter into the Loan Documents and to
make the Loan, and in consideration thereof, Guarantor
unconditionally guarantees and agrees as follows:
| 1. |
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LIMITED GUARANTY. Guarantor hereby
unconditionally, absolutely, and irrevocably guarantees and
promises to pay to Lender or order, on demand, in lawful money of
the United States of America, in immediately available funds, all
sums for which Borrower is now or hereafter liable to Lender with
respect to any of the following matters: (a) fraud or willful
misrepresentation; (b) material physical waste of the Property
or the Collateral; (c) failure to pay property or other taxes,
assessments or charges from available property cash flow (other
than amounts paid to Lender for taxes, assessments or charges
pursuant to an impound account and where Lender elects not to apply
such funds toward payment of the taxes, assessments or charges
owed) which may create liens senior to the lien of the Deed of
Trust on all or any portion of the Property; (d) failure to
deliver any insurance or condemnation proceeds or awards or any
security deposits received by Borrower to Lender or to otherwise
apply such sums as required under the terms of the Loan Documents
or any other instrument now or hereafter securing the Note;
(e) failure to apply any rents, royalties, accounts, revenues,
income, issues, profits and other benefits from the Property which
are collected or received by Borrower during the period of any
Default or after acceleration of the indebtedness and other sums
owing under the Loan |
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Documents to the payment of either (i) such indebtedness
or other sums or (ii) the normal and |
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necessary operating expenses of the Property; or (f) any
breach by Borrower of any covenant in the Note or in the Deed of
Trust regarding Hazardous Materials or any representation or
warranty of Borrower regarding Hazardous Materials proving to have
been untrue when made. |
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| 2. |
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REMEDIES. If Guarantor fails to promptly perform
its obligations under this Guaranty, Lender may from time to time,
and without first requiring performance by Borrower or exhausting
any or all security for the Loan, bring any action at law or in
equity or both to compel Guarantor to perform its obligations
hereunder, and to collect in any such action compensation for all
loss, cost, damage, injury and expense sustained or incurred by
Lender as a direct or indirect consequence of the failure of
Guarantor to perform its obligations together with interest thereon
at the rate of interest applicable to the principal balance of the
Note. |
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| 3. |
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RIGHTS OF LENDER. Guarantor authorizes Lender,
without giving notice to Guarantor or obtaining Guarantor’s
consent and without affecting the liability of Guarantor, from time
to time to: (a) renew or extend all or any portion of
Borrower’s obligations under the Note or any of the other
Loan Documents; (b) declare all sums owing to Lender under the
Note and the other Loan Documents due and payable upon the
occurrence of a Default (as defined in the Note) under the Loan
Documents; (c) make non-material changes in the dates
specified for payments of any sums payable in periodic installments
under the Note or any of the other Loan Documents;
(d) otherwise modify, amend, supplement or replace from time
to time the terms of any of the Loan Documents, except for
(i) increases in the principal amount of the Note or changes
in the terms and conditions by which interest rates, fees or
charges are calculated under the Note and the other Loan Documents
(Guarantor acknowledges that if the Note or other Loan Documents so
provide, said interest rates, fees and charges may vary from time
to time) or (ii) advancement of the Maturity Date of the Note where
no Default has occurred under the Loan Documents; (e) take and
hold security for the performance of Borrower’s obligations
under the Note or the other Loan Documents and exchange, enforce,
waive and release any such security; (f) apply such security
and direct the order or manner of sale thereof as Lender in its
discretion may determine; (g) release, substitute or add any
one or more endorsers of the Note or guarantors of Borrower’s
obligations under the Note or the other Loan Documents;
(h) apply payments received by Lender from Borrower to any
obligations of Borrower to Lender, in such order as Lender shall
determine in its sole discretion, whether or not any such
obligations are covered by this Guaranty; and (i) assign this
Guaranty in whole or in part. |
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| 4. |
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GUARANTOR’S WAIVERS. Guarantor waives:
(a) any defense based upon any legal disability or other
defense of Borrower, any other guarantor or other person, or by
reason of the cessation or limitation of the liability of Borrower
from any cause other than full payment of all sums payable under
the Note or any of the other Loan Documents; (b) any defense
based upon any lack of authority of the officers, directors,
partners or agents acting or purporting to act on behalf of
Borrower or any principal of Borrower or any defect in the
formation of Borrower or any principal of Borrower; (c) any
defense based upon the application by Borrower of the proceeds of
the Loan for purposes other than the purposes represented by
Borrower to Lender or intended or understood by Lender or
Guarantor; (d) all rights and defenses arising out of an
election of remedies by Lender, even though that election of
remedies, such as a nonjudicial foreclosure with respect to
security for a guaranteed obligation, has destroyed
Guarantor’s rights of subrogation and reimbursement against
Borrower by the operation of Section 580d of the California
Code of Civil Procedure or otherwise; (e) any defense based upon
Lender’s failure to disclose to Guarantor any information
concerning Borrower’s financial condition or any other
circumstances bearing on Borrower’s ability to pay all sums
payable under the Note or any of the other Loan Documents;
(f) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in
amount nor in any other respects more burdensome than that of a
principal; (g) any defense based upon Lender’s election,
in any proceeding instituted under the Federal Bankruptcy Code, of
the application of Section 111 1(b)(2) of the Federal
Bankruptcy Code or any successor statute; (h) any defense
based upon any borrowing or any grant of a security interest under
Section 364 of the Federal Bankruptcy Code;
(i) presentment, demand, protest and notice of any kind;
(j) the benefit of any statute of limitations affecting the
liability of Guarantor hereunder or the enforcement hereof; and
(k) any rights under California Code of Civil Procedure
Sections 580a and 726(b), which provide, among other things,
that (i) a creditor must file a complaint for deficiency
within three (3) months of a nonjudicial foreclosure sale or
judicial foreclosure sale, as applicable; (ii) a fair market
value hearing must be held; and (iii) the amount of the
deficiency judgment shall be limited to the amount by which the
unpaid debt exceeds the fair market value of the security, but not
more than the amount by which the unpaid debt exceeds the sale
price of the security. In addition, Guarantor waives all rights and
defenses that Guarantor may have because Borrower’s debt is
secured by real property. This means, among other things:
(l) Lender may collect from Guarantor without first
foreclosing on any real or personal property collateral pledged by
Borrower; and (m) if Lender forecloses on any real property
collateral pledged by Borrower, then (i) the amount of the
debt may be reduced only by the price for which that collateral is
sold at the foreclosure sale, |
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