exv10w3



 





Exhibit 10.3




LIMITED GUARANTY




 





			
	 
	 	Loan No. 31-0900266A





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.	 	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.	 	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.	 	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.	 	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.	 	This Guaranty is not one of the Loan Documents.






	F.	 	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.	 	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




1









 






	 	 	Documents to the payment of either (i) such indebtedness or other sums or (ii) the
normal and




2









 












	 	 	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.
	 
	2.	 	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.
	 
	3.	 	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.
	 
	4.	 	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, even if the collateral is worth more than the sale price, and (ii) Lender may collect
from Guarantor even if Lender, by foreclosing on the real property collateral, has destroyed
any right Guarantor may have to collect from Borrower. The foregoing sentence is an




3









 






	 	 	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 being waived by
Guarantor include, but are not limited to, any rights or defenses based upon Section 580a,
580b, 580d or 726 of the California Code of Civil Procedure. Without limiting the generality of
the foregoing or any other provision hereof, Guarantor also waives, to the extent permitted by
law, any and all rights and defenses which might otherwise be available to Guarantor under
California Civil Code Sections 2787 to 2855, inclusive, or any of such sections. Finally,
Guarantor agrees that the payment of all sums payable under the Note or any of the other Loan
Documents or any part thereof or other act which tolls any statute of limitations applicable to
the Note or the other Loan Documents shall similarly operate to toll the statute of limitations
applicable to Guarantor’s liability hereunder.
	 
	5.	 	GUARANTOR’S WARRANTIES. Guarantor warrants and acknowledges that: (a) Lender would
not make the Loan but for this Guaranty; (b) there are no conditions precedent to the
effectiveness of this Guaranty; (c) Guarantor has established adequate means of obtaining from
sources other than Lender, on a continuing basis, financial and other information pertaining
to Borrower’s financial condition, the Property and Borrower’s activities relating thereto and
the status of Borrower’s performance of obligations under the Loan Documents, and Guarantor
agrees to keep adequately informed from such means of any facts, events or circumstances which
might in any way affect Guarantor’s risks hereunder and Lender has made no representation to
Guarantor as to any such matters; (d) the most recent financial statements of Guarantor
previously delivered to Lender are true and correct in all respects, have been prepared in
accordance with generally accepted accounting principles consistently applied (or other
principles acceptable to Lender) and fairly present the financial condition of Guarantor as of
the respective dates thereof, and no material adverse change has occurred in the financial
condition of Guarantor since the respective dates thereof; (e) Guarantor has not and will not,
without the prior written consent of Lender, sell, lease, assign, encumber, hypothecate,
transfer or otherwise dispose of all or substantially all of Guarantor’s assets, or any
interest therein, other than in the ordinary course of Guarantor’s business; and (f) Guarantor
shall not later than thirty (30) days from written request from Lender, provide Lender with
year-end financial statements of such Guarantor, such statements to be prepared in a form and
in accordance with accounting principles acceptable to Lender.
	 
	6.	 	SUBORDINATION. Guarantor subordinates all present and future indebtedness owing by
Borrower to Guarantor to the obligations at any time owing by Borrower to Lender under the
Note and the other Loan Documents. Guarantor agrees that as long as this Guaranty is in
effect, Guarantor will not take any action or initiate any proceedings, judicial or otherwise,
to enforce Guarantor’s rights or remedies with respect to any such indebtedness, including,
without limitation, any action to enforce remedies with respect to any defaults under such
indebtedness or to any collateral securing such indebtedness or to obtain any judgment or
prejudgment remedy against Borrower or any such collateral. Guarantor also agrees that it
shall not commence or join with any other creditor or creditors of Borrower in commencing any
bankruptcy, reorganization or insolvency proceedings against Borrower. Guarantor further
agrees not to assign all or any part of such indebtedness unless Lender is given prior notice
and such assignment is expressly made subject to the terms of this Guaranty. If Lender so
requests, (a) all instruments evidencing such indebtedness shall be duly endorsed and
delivered to Lender, (b) all security for such indebtedness shall be duly assigned and
delivered to Lender, (c) such indebtedness shall be enforced, collected and held by Guarantor
as trustee for Lender and shall be paid over to Lender on account of the Loan but without
reducing or affecting in any manner the liability of Guarantor under the other provisions of
this Guaranty, and (d) Guarantor shall execute, file and record such documents and instruments
and take such other action as Lender deems necessary or appropriate to perfect, preserve and
enforce Lender’s rights in and to such indebtedness and any security therefor. If Guarantor
fails to take any such action, Lender, as attorney-in-fact for Guarantor, is hereby authorized
to do so in the name of Guarantor. The foregoing power of attorney is coupled with an interest
and cannot be revoked.
	 
	7.	 	BANKRUPTCY OF BORROWER. In any bankruptcy or other proceeding in which the filing of
claims is required by law, Guarantor shall file all claims which Guarantor may have against
Borrower relating to any indebtedness of Borrower to Guarantor and shall assign to Lender all
rights of Guarantor thereunder. If Guarantor does not file any such claim, Lender, as
attorney-in-fact for Guarantor, is hereby authorized to do so in the name of Guarantor or, in
Lender’s discretion, to assign the claim to a nominee and to cause proof of claim to be filed
in the name of Lender’s nominee. The foregoing power of attorney is coupled with an interest
and cannot be revoked. Lender or its nominee shall have the right, in its reasonable
discretion, to accept or reject any plan proposed in such proceeding and to take any other
action which a party filing a claim is entitled to do. In all such cases, whether in
administration, bankruptcy or otherwise, the person or persons authorized to pay such claim
shall pay to Lender the amount payable on such claim and, to the full extent necessary for
that purpose, Guarantor hereby assigns to Lender all of Guarantor’s rights to any such
payments or distributions; provided, however, Guarantor’s obligations hereunder shall
not be satisfied except to the extent that Lender receives cash by reason of any such payment
or distribution. If Lender receives anything hereunder other than cash, the same shall be held
as collateral for amounts due under this Guaranty. If all or any




4









 






	 	 	portion of the obligations guarantied hereunder are paid or performed, the obligations of
Guarantor hereunder shall continue and shall remain in full force and effect in the event that
all or any part of such payment or performance is avoided or recovered directly or indirectly
from Lender as a preference, fraudulent transfer or otherwise under the Bankruptcy Code or
other similar laws, irrespective of (a) any notice of revocation given by Guarantor prior to
such avoidance or recovery, and (b) full payment and performance of all of the indebtedness
and obligations evidenced and secured by the Loan Documents.
	 
	8.	 	DISCLOSURE OF INFORMATION; PARTICIPATIONS. Guarantor agrees that Lender may elect, at
any time, to sell, assign, participate or securitize all or any portion of Lender’s rights and
obligations under the Loan Documents, and that any such sale, assignment, participation or
securitization may be to one or more financial institutions or other entities, to private
investors, and/or into the public securities marketplace, at Lender’s sole discretion.
Guarantor further agrees that Lender may disseminate to any such actual or potential
purchaser(s), assignee(s) or participant(s) all documents and information (including, without
limitation, all financial information) which has been or is hereafter provided to or known to
Lender with respect to: (a) the Property and its operation; and/or (b) any party connected
with the Loan (including, without limitation, the Guarantor, the Borrower, any partner of
Borrower, any constituent partner of Borrower, any guarantor and any nonborrower trustor). In
the event of any such sale, assignment, participation, or securitization, Lender and parties
to the same shall share in the rights and obligations of Lender set forth in the Loan
Documents as and to the extent they shall agree among themselves. In connection with any such
sale, assignment, participation, or securitization, Guarantor further agrees that this
Guaranty shall be sufficient evidence of the obligations of Guarantor to each purchaser,
assignee, or participant, and upon request by Lender, Guarantor shall, within fifteen (15)
days after request by Lender, (d) deliver to Lender and any other party designated by Lender
an estoppel certificate verifying for the benefit of Lender and any other party designated by
Lender the status and the terms and provisions of this Guaranty in form and substance
acceptable to Lender, and (e) enter into such amendments or modifications to this Guaranty as
may be reasonably required in order to facilitate any such sale, assignment, participation or
securitization without impairing Guarantor’s rights or increasing Guarantor’s obligations
hereunder. The indemnity obligations of Guarantor under this Guaranty shall also apply with
respect to any purchaser, assignee or participant.
	 
	9.	 	ADDITIONAL, INDEPENDENT AND UNSECURED OBLIGATIONS. This is a guaranty of payment and
not of collection and the obligations of Guarantor hereunder shall be in addition to and shall
not limit or in any way affect the obligations of Guarantor under any other existing or future
guaranties unless said other guaranties are expressly modified or revoked in writing. This
Guaranty is independent of the obligations of Borrower under the Note, the Deed of Trust and
the other Loan Documents. Guarantor agrees that nothing contained in this Guaranty shall
prevent Lender from suing to collect on the Note or from exercising concurrently or
successively any rights available to it at law and/or in equity or under any of the Loan
Documents, and that the exercise of any of the aforesaid rights shall not constitute a legal
or equitable discharge of Guarantor. Guarantor hereby authorizes and empowers Lender to
exercise, in its sole discretion, any rights and remedies, or any combination thereof, which
may then be available, since it is the intent and purpose of Guarantor that the obligations
hereunder shall be absolute, independent and unconditional under any and all circumstances.
Lender may bring a separate action to enforce the provisions hereof against Guarantor without
taking action against Borrower or any other party or joining Borrower or any other party as a
party to such action. Except as otherwise provided in this Guaranty, this Guaranty is not
secured and shall not be deemed to be secured by any security instrument unless such security
instrument expressly recites that it secures this Guaranty.
	 
	10.	 	ATTORNEYS’ FEES; ENFORCEMENT. If any attorney is engaged by Lender to enforce or
defend any provision of this Guaranty, or any of the other Loan Documents, or as a consequence
of any Default under the Loan Documents, with or without the filing of any legal action or
proceeding, Guarantor shall pay to Lender, immediately upon demand all reasonable attorneys’
fees and costs incurred by Lender in connection therewith, together with interest thereon from
the date of such demand until paid at the rate of interest applicable to the principal balance
of the Note as specified therein.
	 
	11.	 	RULES OF CONSTRUCTION. The word “Borrower” as used herein shall include both the
named Borrower and any other person at any time assuming or otherwise becoming primarily
liable for all or any part of the obligations of the named Borrower under the Note and the
other Loan Documents. The term “person” as used herein shall include any individual, company,
trust or other legal entity of any kind whatsoever. If this Guaranty is executed by more than
one person, the term “Guarantor” shall include all such persons. When the context and
construction so require, all words used in the singular herein shall be deemed to have been
used in the plural and vice versa. All headings appearing in this Guaranty are for convenience
only and shall be disregarded in construing this Guaranty. Capitalized terms not otherwise
defined herein shall have the meanings set forth in the Deed of Trust.




5









 






	12.	 	CREDIT REPORTS. Each legal entity and individual obligated on this Guaranty
hereby authorizes Lender to order and obtain, from a credit reporting agency of Lender’s
choice, a third party credit report on such legal entity and individual.
	 
	13.	 	GOVERNING LAW. This Guaranty shall be governed by, and construed in accordance with,
the laws of the State of California, except to the extent preempted by Federal laws. Guarantor
and all persons and entities in any manner obligated to Lender under this Guaranty consent to
the jurisdiction of any Federal or State Court within the State of California having proper
venue and also consent to service of process by any means authorized by California or Federal
law.
	 
	14.	 	MISCELLANEOUS. The provisions of this Guaranty will bind and benefit the heirs,
executors, administrators, legal representatives, nominees, successors and assigns of
Guarantor and Lender. The liability of all persons and entities who are in any manner
obligated hereunder shall be joint and several. If any provision of this Guaranty shall be
determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that
portion shall be deemed severed from this Guaranty and the remaining parts shall remain in
full force as though the invalid, illegal or unenforceable portion had never been part of this
Guaranty.
	 
	15.	 	SURVIVAL. This Guaranty shall be deemed to be continuing in nature and shall remain
in full force and effect and shall survive the exercise of any remedy by Lender under the Deed
of Trust or any of the other Loan Documents, including, without limitation, any foreclosure or
deed in lieu thereof.
	 
	16.	 	ADDITIONAL PROVISIONS. Such additional terms, covenants and conditions as may be set
forth on any exhibit executed by Guarantor and attached hereto which recites that it is an
exhibit to this Guaranty are incorporated herein by this reference.
	 
	17.	 	ENFORCEABILITY. Guarantor hereby acknowledges that: (a) the obligations undertaken by
Guarantor in this Guaranty are complex in nature, and (b) numerous possible defenses to the
enforceability of these obligations may presently exist and/or may arise hereafter, and (c) as
part of Lender’s consideration for entering into this transaction, Lender has specifically
bargained for the waiver and relinquishment by Guarantor of all such defenses, and (d)
Guarantor has had the opportunity to seek and receive legal advice from skilled legal counsel
in the area of financial transactions of the type contemplated herein. Given all of the above,
Guarantor does hereby represent and confirm to Lender that Guarantor is fully informed
regarding, and that Guarantor does thoroughly understand: (i) the nature of such possible
defenses, and (ii) the circumstances under which such defenses may arise, and (iii) the
benefits which such defenses might confer upon Guarantor, and (iv) the legal consequences to
Guarantor of waiving such defenses. Guarantor acknowledges that Guarantor makes this Guaranty
with the intent that this Guaranty and all of the informed waivers herein shall each and all
be fully enforceable by Lender, and that Lender is induced to enter into this transaction in
material reliance upon the presumed full enforceability thereof.
	 
	18.	 	WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LENDER AND GUARANTOR
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS GUARANTY, OR ANY COURSE OR CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN), OR ACTIONS OF LENDER OR GUARANTOR. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
LENDER TO MAKE THIS LOAN TO BORROWER.




IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date appearing on the first
page of this Guaranty.

“GUARANTOR”




	 	 	 	 	 
	IXYS CORPORATION,

a Delaware corporation

 	 
	By:  	/s/ Uzi Sasson
 	 
	 	Uzi Sasson 	 
	 	Vice President of Finance 	 
	 




6