EXHIBIT 10.12
UNCONDITIONAL GUARANTY
(CORPORATE)
For and in consideration of the loan accommodations by SILICON VALLEY
BANK (individually and in its capacity as servicing agent) and BANK OF HAWAII
(collectively, the "Banks") to Cymer Japan, Inc. ("Borrower"), which are made
pursuant to the Loan Agreement of even date herewith between Borrower and
Cymer, Inc., on one side, and the Banks, on the other side (the "Agreement"),
the undersigned guarantor ("Guarantor") hereby unconditionally and
irrevocably guarantees the prompt and complete payment of all amounts that
Borrower owes to Banks and performance by Borrower of the Agreement and any
other agreements between Borrower and Banks, as amended from time to time
(collectively referred to as the "Agreements"), in strict accordance with
their respective terms.
1. If Borrower does not perform its obligations in strict accordance
with the Agreements, Guarantor shall immediately pay all amounts due
thereunder (including, without limitation, all principal, interest, and fees)
and otherwise to proceed to complete the same and satisfy all of Borrower's
obligations under the Agreements.
2. The obligations hereunder are independent of the obligations of
Borrower, and a separate action or actions may be brought and prosecuted
against Guarantor whether action is brought against Borrower or whether
Borrower be joined in any such action or actions. Guarantor waives the
benefit of any statute of limitations affecting its liability hereunder or
the enforcement thereof, to the extent permitted by law. Guarantor's
liability under this Guaranty is not conditioned or contingent upon the
genuineness, validity, regularity or enforceability of the Agreements.
3. Guarantor authorizes Banks, without notice or demand and without
affecting its liability hereunder, from time to time to (a) renew, extend, or
otherwise change the terms of the Agreements or any part thereof; (b) take
and hold security for the payment of this Guaranty or the Agreements, and
exchange, enforce, waive and release any such security; and (c) apply such
security and direct the order or manner of sale thereof as Banks in their
sole discretion may determine.
4. Guarantor waives any right to require Banks to (a) proceed against
Borrower or any other person; (b) proceed against or exhaust any security
held from Borrower; or (c) pursue any other remedy in Banks' power
whatsoever. Banks may, at its election, exercise or decline or fail to
exercise any right or remedy it may have against Borrower or any security
held by Banks, including without limitation the right to foreclose upon any
such security by judicial or nonjudicial sale, without affecting or impairing
in any way the liability of Guarantor hereunder. Guarantor waives any
defense arising by reason of any disability or other defense of Borrower or
by reason of the cessation from any cause whatsoever of the liability of
Borrower, other than the indefeasible prior and complete payment of the
Obligations provided that such payment is not partially or fully disgorged or
otherwise subject to disgorgement for any reason by the Banks in a
bankruptcy, insolvency or any other proceeding. Guarantor waives any setoff,
defense or counterclaim that Borrower may have against Banks. Guarantor
waives any defense arising out of the absence, impairment or loss of any
right of reimbursement or subrogation or any other rights against Borrower.
Until all of the amounts that Borrower owes to Banks have been paid in full,
Guarantor shall have no right of subrogation or reimbursement for claims
arising out of or in connection with this Guaranty, contribution or other
rights against Borrower, and Guarantor waives any right to enforce any remedy
that Banks now have or may hereafter have against Borrower. Guarantor waives
all rights to participate in any security now or hereafter held by Banks.
Guarantor waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and
notices of acceptance of this Guaranty and of the existence, creation, or
incurring of new or additional indebtedness.
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Guarantor assumes the responsibility for being and keeping itself informed of
the financial condition of Borrower and of all other circumstances bearing
upon the risk of nonpayment of any indebtedness or nonperformance of any
obligation of Borrower, warrants to Banks that it will keep so informed, and
agrees that absent a request for particular information by Guarantor, Banks
shall have no duty to advise Guarantor of information known to Banks
regarding such condition or any such circumstances. Guarantor waives the
benefits of California Civil Code sections 2809, 2810, 2819, 2845, 2847,
2848, 2849, 2850, 2899 and 3433.
5. Guarantor acknowledges that, to the extent Guarantor has or may have
certain rights of subrogation or reimbursement against Borrower for claims
arising out of this Guaranty, those rights may be impaired or destroyed if Banks
elect to proceed against any real property security of Borrower by non-judicial
foreclosure. That impairment or destruction could, under certain judicial cases
and based on equitable principles of estoppel, give rise to a defense by
Guarantor against its obligations under this Guaranty. Guarantor waives that
defense and any others arising from Banks' election to pursue non-judicial
foreclosure. Without limiting the generality of the foregoing, Guarantor waives
any and all benefits and defenses under California Code of Civil Procedure
Sections 580a, 580b, 580d and 726, to the extent they are applicable.
6. If Borrower becomes insolvent or is adjudicated bankrupt or files
a petition for reorganization, arrangement, composition or similar relief
under any present or future provision of the United States Bankruptcy Code,
or if such a petition is filed against Borrower, and in any such proceeding
some or all of any indebtedness or obligations under the Agreements are
terminated or rejected or any obligation of Borrower is modified or
abrogated, or if Borrower's obligations are otherwise avoided for any reason,
Guarantor agrees that Guarantor's liability hereunder shall not thereby be
affected or modified and such liability shall continue in full force and
effect as if no such action or proceeding had occurred. This Guaranty shall
continue to be effective or be reinstated, as the case may be, if any payment
must be returned by Banks upon the insolvency, bankruptcy or reorganization
of Borrower, Guarantor, any other guarantor, or otherwise, as though such
payment had not been made.
7. Any indebtedness of Borrower now or hereafter held by Guarantor is
hereby subordinated to any indebtedness of Borrower to Banks; and such
indebtedness of Borrower to Guarantor shall be collected, enforced and
received by Guarantor as trustee for Banks and be paid over to Banks on
account of the indebtedness of Borrower to Banks but without reducing or
affecting in any manner the liability of Guarantor under the other provisions
of this Guaranty.
8. Guarantor agrees to pay a reasonable attorneys' fee and all other
costs and expenses which may be incurred by Banks in the enforcement of this
Guaranty. No terms or provisions of this Guaranty may be changed, waived,
revoked or amended without Banks' prior written consent. Should any
provision of this Guaranty be determined by a court of competent jurisdiction
to be unenforceable, all of the other provisions shall remain effective.
This Guaranty embodies the entire agreement among the parties hereto with
respect to the matters set forth herein, and supersedes all prior agreements
among the parties with respect to the matters set forth herein. No course of
prior dealing among the parties, no usage of trade, and no parol or extrinsic
evidence of any nature shall be used to supplement, modify or vary any of the
terms hereof. There are no conditions to the full effectiveness of this
Guaranty. Banks may assign this Guaranty without in any way affecting
Guarantor's liability under it. This Guaranty shall inure to the benefit of
Banks and their successors and assigns. This Guaranty is in addition to the
guaranties of any other guarantors and any and all other guaranties of
Borrower's indebtedness or liabilities to Banks.
9. Guarantor represents and warrants to Banks that (i) Guarantor has
taken all necessary and appropriate action to authorize the execution,
delivery and performance of this Guaranty, (ii) execution, delivery and
performance of this Guaranty do not conflict with or result
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in a breach of or constitute a default under Guarantor's Articles of
Incorporation or Bylaws or other organizational documents or agreements to
which it is party or by which it is bound, and (iii) this Guaranty
constitutes a valid and binding obligation, enforceable against Guarantor in
accordance with its terms.
10. Guarantor covenants and agrees that Guarantor shall do all of the
following:
10.1 Guarantor shall maintain its corporate existence, remain in
good standing in Delaware, and continue to qualify in each jurisdiction in
which the failure to so qualify could have a material adverse effect on the
financial condition, operations or business of Guarantor. Guarantor shall
maintain in force all licenses, approvals and agreements, the loss of which
could have a material adverse effect on its financial condition, operations
or business.
10.2 Guarantor shall comply with all statutes, laws, ordinances,
directives, orders, and government rules and regulations to which it is
subject if non-compliance with such laws could adversely affect the financial
condition, operations or business of Guarantor.
10.3 At any time and from time to time Guarantor shall execute and
deliver such further instruments and take such further action as may
reasonably be requested by Bank to effect the purposes of this Agreement.
11. This Guaranty shall be governed by the laws of the State of
California, without regard to conflicts of laws principles. GUARANTOR WAIVES
ANY RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS. Guarantor submits to the exclusive
jurisdiction of the state and federal courts located in San Diego County,
California.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this
Guaranty as of this 8th of December, 1997.
Cymer, Inc.
By: /s/ Xxxxxxx X. Xxxxx, III
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Title: Senior Vice President, Chief Financial
Officer
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