EXHIBIT 4
GUARANTEE
GUARANTEE, dated as of September 8, 1999 (the "Guarantee"), made by
each of the corporations that are signatories hereto (together with any other
entity that may become a party hereto as provided herein, the "Guarantors"), in
favor of THE CHASE MANHATTAN BANK, as agent (in such capacity, the "Agent") for
the lenders (the "Lenders") parties to the Loan Agreement, dated as of September
8, 1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Recoton Corporation (the "Borrower"), the Lenders and
the Agent.
W I T N E S S E T H:
WHEREAS, the Lenders are the holders of a portion of the Existing
Senior Obligations (such term, and the other capitalized terms in the Recitals,
having the meanings hereinafter assigned to them) and subject to the terms and
conditions thereto, have agreed to modify and restructure the Existing Senior
Obligations and provide additional working capital to the Borrower pursuant to
the Master Restructuring Agreement among such parties, the Borrower and certain
other creditors of the Borrower;
WHEREAS, pursuant to the Credit Agreement the Lenders have agreed,
subject to the terms and conditions thereof, to make certain loans and other
extensions of credit to the Borrower;
WHEREAS, the Borrower beneficially owns directly or indirectly at
least a majority of the issued and outstanding stock of each Guarantor;
WHEREAS, the proceeds of the extensions of credit provided for in the
Credit Agreement will be used in part to enable the Borrower to make valuable
transfers (as determined as provided herein) to some of the Guarantors in
connection with the operation of their businesses;
WHEREAS, the Borrower and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the extensions of credit provided for in the Credit
Agreement; and
WHEREAS, it is a condition precedent to the effectiveness of the
Credit Agreement, which in turn is a condition precedent to the effectiveness of
the Master Restructuring Agreement, that, among other things, the Guarantors
shall have executed and delivered this Guarantee to the Agent, for the ratable
benefit of the Lenders.
NOW, THEREFORE, in consideration of the premises and to induce the
Agent and the Lenders to enter into the Credit Agreement, the Existing Banks to
consummate the restructuring contemplated thereby, and the Lenders to make their
respective loans and other extensions of credit to the Borrower under the Credit
Agreement, the Guarantors hereby agree with the Agent, for the ratable benefit
of the Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms used
herein that are defined the Credit Agreement or MRA Appendix B shall have the
meanings given to them therein and the following terms shall have the following
meanings:
"Obligations": the collective reference to the unpaid principal of and
interest on any Notes and all other obligations and liabilities of the Borrower
to the Agent or the Lenders (including, without limitation, interest accruing at
the then applicable rate provided in the Credit Agreement after the maturity of
the Loans and interest accruing at the then applicable rate provided in the
Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred, which may
arise under, out of, or in connection with, the Credit Agreement, any Notes, the
other Loan Documents or any other document made, delivered or given in
connection therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Agent or to the Lenders
that are required to be paid by the Borrower or the Guarantors pursuant to the
terms of the Credit Agreement or this Agreement or any other Loan Document).
(b) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Guarantee shall refer to this Guarantee as a whole and
not to any particular provision of this Guarantee, and section and paragraph
references are to this Guarantee unless otherwise specified.
(c) The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation".
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guarantee (a) Subject to the provisions of paragraph 2(b), each of
the Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the Agent, for the ratable benefit of the Lenders and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under the laws of any applicable national, federal, state,
provincial or other Governmental Authority relating to the insolvency of debtors
regardless of whether such insolvency arises from the inability to pay debts as
they come due or otherwise; provided that in the case of any Guarantor that is a
German Subsidiary, its maximum liability shall be further limited to the amount
in excess of such Guarantor's minimum stated capital.
(c) Each Guarantor further agrees to pay any and all reasonable
expenses (including, without limitation, all fees and disbursements of counsel)
which may be paid or incurred by the Agent or any Lender in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, such Guarantor under this Guarantee. This
Guarantee shall remain in full force and effect until the Obligations are paid
in full and the Commitments are terminated, notwithstanding that from time to
time prior thereto the Borrower may be free from any Obligations.
(d) Each Guarantor agrees that the Obligations may at any time and
from time to time exceed the amount of the liability of such Guarantor hereunder
without impairing this Guarantee or affecting the rights and remedies of the
Agent or any Lender hereunder.
(e) No payment or payments made by the Borrower, any of the
Guarantors, any other guarantor or any other Person or received or collected by
the Agent or any Lender from the Borrower, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment or payments other than payments made by
such Guarantor in respect of the Obligations or payments received or collected
from such Guarantor in respect of the Obligations, remain liable for the
Obligations up to the maximum liability of such Guarantor hereunder until the
Obligations are paid in full and the Commitments are terminated.
(f) Each Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Agent or any Lender on account of its
liability hereunder, it will notify the Agent in writing that such payment is
made under this Guarantee for such purpose.
3. Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 5 hereof. The provisions
of this Section shall in no respect limit the obligations and liabilities of any
Guarantor to the Agent and the Lenders, and each Guarantor shall remain liable
to the Agent and the Lenders for the full amount guaranteed by such Guarantor
hereunder.
4. Right of Set-off. Each Guarantor hereby irrevocably authorizes each
Lender at any time and from time to time without notice to such Guarantor or any
other Guarantor, any such notice being expressly waived by each Guarantor, to
set-off and appropriate and apply any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender to or for the credit or the account of such Guarantor, or
any part thereof in such amounts as such Lender may elect, against and on
account of the obligations and liabilities of such Guarantor to such Lender
hereunder that shall have become due and payable. The Agent and each Lender
shall notify such Guarantor promptly of any such set-off and the application
made by the Agent or such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of the
Agent and each Lender under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Agent or such Lender may have.
5. No Subrogation. Notwithstanding any payment or payments made by any
of the Guarantors hereunder or any set-off or application of funds of any of the
Guarantors by any Lender, no Guarantor shall be entitled to be subrogated to any
of the rights of the Agent or any Lender against the Borrower or any other
Guarantor or any collateral security or guarantee or right of offset held by any
Lender for the payment of the Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Agent and the Lenders by the Borrower on account of the
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to any Guarantor on account of such subrogation rights at any time
when all of the Obligations shall not have been paid in full, such amount shall
be held by such Guarantor in trust for the Agent and the Lenders, segregated
from other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Agent in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
the Agent may determine.
6. Amendments, etc. with respect to the Obligations; Waiver of Rights.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Obligations made
by the Agent or any Lender may be rescinded by such party and any of the
Obligations continued, and the Obligations, or the liability of any other party
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Agent or any Lender, and the Credit Agreement,
any Notes and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Agent (or the Required Lenders, as the
case may be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Agent or any Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Obligations or for this Guarantee or any property subject thereto. When making
any demand hereunder against any of the Guarantors, the Agent or any Lender may,
but shall be under no obligation to, make a similar demand on the Borrower or
any other Guarantor or guarantor, and any failure by the Agent or any Lender to
make any such demand or to collect any payments from the Borrower or any such
other Guarantor or guarantor or any release of the Borrower or such other
Guarantor or guarantor shall not relieve any of the Guarantors in respect of
which a demand or collection is not made or any of the Guarantors not so
released of their several obligations or liabilities hereunder, and shall not
impair or affect the rights and remedies, express or implied, or as a matter of
law, of the Agent or any Lender against any of the Guarantors. For the purposes
hereof "demand" shall include the commencement and continuance of any legal
proceedings.
7. Guarantee Absolute and Unconditional. Each Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Agent or any Lender upon
this Guarantee or acceptance of this Guarantee, the Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon this Guarantee; and
all dealings between the Borrower and any of the Guarantors, on the one hand,
and the Agent and the Lenders, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this Guarantee. Each
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrower or any of the Guarantors with
respect to the Obligations. Each Guarantor understands and agrees that this
Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of the Credit Agreement, any Note or any other Loan Document, any
of the Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
the Agent or any Lender, (b) any defense, set-off or counterclaim (other than a
defense of payment or performance) which may at any time be available to or be
asserted by the Borrower against the Agent or any Lender or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrower
or such Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrower for the Obligations, or of such
Guarantor under this Guarantee, in bankruptcy or in any other instance. When
pursuing its rights and remedies hereunder against any Guarantor, the Agent and
any Lender may, but shall be under no obligation to, pursue such rights and
remedies as it may have against the Borrower or any other Person or against any
collateral security or guarantee for the Obligations or any right of offset with
respect thereto, and any failure by the Agent or any Lender to pursue such other
rights or remedies or to collect any payments from the Borrower or any such
other Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Borrower or any such
other Person or any such collateral security, guarantee or right of offset,
shall not relieve such Guarantor of any liability hereunder, and shall not
impair or affect the rights and remedies, whether express, implied or available
as a matter of law, of the Agent and the Lenders against such Guarantor. This
Guarantee shall remain in full force and effect and be binding in accordance
with and to the extent of its terms upon each Guarantor and the successors and
assigns thereof, and shall inure to the benefit of the Agent and the Lenders,
and their respective successors, indorsees, transferees and assigns, until all
the Obligations and the obligations of each Guarantor under this Guarantee shall
have been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
the Borrower may be free from any Obligations.
8. Reinstatement. This Guarantee shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or any Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or any Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
9. Payments. Each Guarantor hereby guarantees that payments hereunder
will be paid to the Agent without set-off or counterclaim in U.S. Dollars at the
office of the Agent, currently located at 000-00 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx,
Xxxxxxxxxx, Xxx Xxxx 00000 or such other office as specified in a written notice
delivered in accordance with paragraph 12.
10. Representations and Warranties. Each Guarantor hereby represents
and warrants that:
(a) it has the corporate power and authority and the legal right to
execute and deliver, and to perform its obligations under, this Guarantee, and
has taken all necessary corporate action to authorize its execution, delivery
and performance of this Guarantee;
(b) this Guarantee constitutes a legal, valid and binding obligation
of such Guarantor enforceable in accordance with its terms, except as affected
by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting the enforcement of creditors' rights
generally, general equitable principles and an implied covenant of good faith
and fair dealing;
(c) the execution, delivery and performance of this Guarantee will not
violate any provision of any Requirement of Law or Contractual Obligation of
such Guarantor and will not result in or require the creation or imposition of
any Lien on any of the properties or revenues of such Guarantor pursuant to any
Requirement of Law or Contractual Obligation of the Guarantor;
(d) no consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or Governmental Authority and no consent of any other
Person (including, without limitation, any stockholder or creditor of such
Guarantor) is required in connection with the execution, delivery, performance,
validity or enforceability of this Guarantee; and
(e) except in certain jurisdictions in each of which the provisions of
paragraph 20 hereof are enforceable against such Guarantor, each Guarantor is
not required to make any deduction or withholding from any payment to be made by
it under this Guarantee, and this Guarantee is not liable to any registration
tax, stamp duty or similar tax or duty imposed by any competent authority of or
within the jurisdiction in which it is organized. Each Guarantor agrees that the
foregoing representations and warranties shall be deemed to have been made by
such Guarantor on the date of each extension of credit in favor of the Borrower
under the Credit Agreement on and as of such date of such extension of credit as
though made hereunder on and as of such date.
11. Authority of Agent. Each Guarantor acknowledges that the rights
and responsibilities of the Agent under this Guarantee with respect to any
action taken by the Agent or the exercise or non-exercise by the Agent of any
option, right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as between the Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Agent and such Guarantor, the Agent shall be conclusively presumed to be acting
as agent for the Lenders with full and valid authority so to act or refrain from
acting, and no Guarantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
12. Notices. All notices, requests and demands to or upon the Agent,
any Lender or any Guarantor to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by registered or certified mail,
five days (or ten days, in the case of mailings between locations inside and
outside of the United States) days after being deposited in the mails, postage
prepaid (airmail, in the case of mailings between locations inside and outside
of the United States), or (c) in the case of delivery by facsimile transmission,
when sent and receipt has been confirmed, addressed as follows:
(a) if to the Agent or any Lender, at its address or transmission
number for notices provided in subsection 10.2 of the Credit Agreement; and
(b) if to any Guarantor, at its address or transmission number for
notices set forth on Schedule I to this Guarantee.
The Agent, each Lender and each Guarantor may change its address and
transmission numbers for notices or for payments pursuant to paragraph 9 by
notice in the manner provided in this Section.
13. Counterparts. This Guarantee may be executed by one or more of the
Guarantors on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the counterparts of this Guarantee signed by all the Guarantors shall be
lodged with the Agent.
14. Severability. Any provision of this Guarantee which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. Integration. This Guarantee represents the agreement of each
Guarantor with respect to the subject matter hereof and there are no promises or
representations by the Agent or any Lender relative to the subject matter hereof
not reflected herein.
16. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by each Guarantor
and the Agent, provided that any provision of this Guarantee may be waived by
the Agent and the Lenders in a letter or agreement executed by the Agent or by
telex or facsimile transmission from the Agent.
(b) Neither the Agent nor any Lender shall by any act (except by a
written instrument pursuant to paragraph 16(a) hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Agent or any Lender, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Agent or any Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Agent
or such Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
17. Section Headings. The section headings used in this Guarantee are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
18. Successors and Assigns. This Guarantee shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Agent and the Lenders and their successors and assigns.
19. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
20. Taxes. All payments made by each Guarantor under this Guarantee
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
net income taxes and franchise taxes (imposed in lieu of net income taxes)
imposed on the Agent or any Lender as a result of a present or former connection
between the Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the Agent
or such Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Guarantee). If any such non-excluded
taxes, levies, imposts, duties, charges, fees deductions or withholdings ("Non-
Excluded Taxes") are required to be withheld from any amounts payable to the
Agent or any Lender hereunder, the amounts so payable to the Agent or such
Lender shall be increased to the extent necessary to yield to the Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement.
21. Submission To Jurisdiction Waivers. Each Guarantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Guarantee, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof.
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such Guarantor at
its address set forth with its signature below or at such other address of which
the Agent shall have been notified pursuant hereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this subsection any special, exemplary, punitive or consequential damages.
22. Acknowledgments. Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Guarantee;
(b) neither the Agent nor any Lender has any fiduciary relationship
with or duty to such Guarantor arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between the
Agent and Lenders, on one hand, and such Guarantor, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Guarantors and the Lenders.
23. WAIVERS OF JURY TRIAL. EACH GUARANTOR, ANY, BY THEIR ACCEPTANCE
HEREOF, THE AGENT AND THE LENDERS, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE AND
FOR ANY COUNTERCLAIM THEREIN.
24. Payment Currency. The obligation of each Guarantor in respect of
any amount due hereunder to make payments in Dollars shall not be discharged or
satisfied by payment in another currency, whether pursuant to a judgment or
otherwise, to the extent that the amount so paid on prompt conversion to Dollars
and transfer to the designated place of payment under normal banking procedures
does not yield the amount owing hereunder at the designated place of payment. In
the event that any payment by any Guarantor whether pursuant to a judgment or
otherwise, upon such conversion and transfer does not result in payment of such
amount in Dollars at the designated place of payment, the Agent shall be
entitled to demand immediate payment of, and shall have a separate cause of
action against such Guarantor for the additional amount necessary to yield the
amount of Dollars owing hereunder.
25. Additional Guarantors. Each Subsidiary of the Borrower that is
required to become a party to this Guarantee pursuant to subsection 1.13(c) of
MRA Appendix B shall become a Guarantor for all purposes of this Guarantee upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex 1 hereto.
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
RECOTON CORPORATION
SUBSIDIARIES
Christie Design Corporation, a Delaware
corporation
InterAct Accessories, Inc., a Delaware
corporation
Recoton Audio Corporation, a Delaware
corporation
ReCone, Inc., a Delaware corporation
Recoton Home Audio, Inc., a California
corporation
Recoton Japan, Inc., an Illinois
corporation
Recoton International Holdings, Inc., a
Delaware corporation
Recoton European Holdings, Inc., a Delaware
corporation
AAMP of Florida, Inc., a Florida
corporation
By: /s/ Stuart Mont
--------------------------
Name: Stuart Mont
Title: Vice President
Recoton German Holdings GmbH, a German
corporation
Mac Audio Electronic GmbH, a German
corporation
Magnat Audio-Produkte GmbH, a German
corporation
Heco Audio-Produkte GmbH, a German
corporation
By: /s/ XX Xxxxxxxx
----------------------------------
Name: XX Xxxxxxxx
Title: Managing Director
Recoton Canada Ltd., a Canadian corporation
By: /s/ Stuart Mont
-----------------------------------
Name: Stuart Mont
Title: President
Schedule I
GUARANTORS' ADDRESSES1
(1) Recoton Canada Ltd.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx X0X 0XX Xxxxxx
Tel.: 000-000-0000
Fax: 000-000-0000
Attn.: Xxxxx Xxxxxxx
(2) Christie Design Corporation
000 Xxxx Xxxx. #00
Xxxxxxx Xxxxxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Attn.: Xxxx Xxxxxxxx
(3) Interact Accessories, Inc.
00000 XxXxxxxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Attn.: Xxxx Xxxx
(4) Recoton Home Audio, Inc.
Recoton Audio Corporation
ReCone, Inc.
Recoton Japan, Inc.
Recoton International Holdings, Inc.
Recoton European Holdings, Inc.
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attn.: Stuart Mont
(5) AAMP of Florida, Inc.
00000 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attn.: Xxxxx Xxxxxx
(6) Recoton German Holdings GmbH
Xxxx-Xxxxxxx-Xxxxxxx 0
00000 Xxxxxxx
XXXXXXX
Tel: 000-00-0000-000000
Fax: 000-00-0000-000000
Attn.: Xxxxxxx Xxxxxxxx
(7) Magnat Audio-Produkte GmbH
MacAudio Electronics GmbH
HECO Audio-Produkte GmbH
Xxxx-Xxxxxxx-Xxxxxxx 0
00000 Xxxxxxx
XXXXXXX
Tel: 000-00-0000-000000
Fax: 000-00-0000-000000
Attn.: Xxxx Finger, Manager Director
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1. In each case, notice shall also be given to the Guarantor at the
following address: c/o Recoton Corporation, 0000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxx 00000; Attn.: Stuart Mont; Fax: 000-000-0000; Tel:
000-000-0000.
STATE OF )
:ss.:
COUNTY OF )
On the ______ day of __________ 1999, before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that
he/she resides at __________________________; that he/she is
_____________________ of _______________ _______________________, the
corporation described in and which executed the above instrument; and that
he/she signed his/her name thereto by authority of the Board of Directors of
said corporation.
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Notary Public
Annex 1 to
Guarantee
ASSUMPTION AGREEMENT, dated as of ________________, 199_, made by
______________________________, a ______________ corporation (the "Additional
Guarantor"), in favor of THE CHASE MANHATTAN BANK, as administrative agent (in
such capacity, the "Agent") for the banks and other financial institutions (the
"Lenders") parties to the Credit Agreement referred to below. All capitalized
terms not defined herein shall have the meaning ascribed to them in such Credit
Agreement.
W I T N E S S E T H :
WHEREAS, Recoton Corporation (the "Borrower"), the Lenders and the
Agent have entered into a Credit Agreement, dated as of September 8, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, in connection with the Credit Agreement, certain of the
Borrower's Subsidiaries (other than the Additional Guarantor) have entered into
the Guarantee Agreement, dated as of September 8, 1999 (as amended, supplemented
or otherwise modified from time to time, the "Guarantee") in favor of the Agent
for the benefit of the Lenders;
WHEREAS, the Lenders are the holders of a portion of the Existing
Senior Obligations (such term, and the other capitalized terms in the Recitals
having the meanings hereinafter assigned to them in the guarantee) and subject
to the terms and conditions thereto, have agreed to modify and restructure the
Existing Senior Obligations and provide additional working capital to the
Borrower pursuant to the Master Restructuring Agreement among such parties, the
Borrower and certain other creditors of the Borrower;
WHEREAS, the Credit Agreement and the Master Restructuring Agreement
require the Additional Guarantor to become a party to the Guarantee; and
WHEREAS, the Additional Guarantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the Guarantee;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee. By executing and delivering this Assumption Agreement,
the Additional Guarantor, as provided in subsection 1.13(c) of MRA Appendix B,
hereby becomes a party to the Guarantee as a Guarantor thereunder with the same
force and effect as if originally named therein as a Guarantor and, without
limiting the generality of the foregoing, hereby expressly assumes all
obligations and liabilities of a Guarantor thereunder. The Guarantor hereby
represents and warrants that each of the representations and warranties
contained in Section 3 of the Guarantee is true and correct on and as the date
hereof (after giving effect to this Assumption Agreement) as if made on and as
of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GUARANTOR]
By:
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Name:
Title:
Address for Notices:
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