US GUARANTEE
Exhibit 10.4
EXECUTION VERSION
US GUARANTEE, dated as of October 13, 2010 (this “US Guarantee”), made among XXXXX
INTERMEDIATE HOLDINGS CORP., a Delaware corporation (“Holdings”), ASSOCIATED MATERIALS,
LLC, a Delaware limited liability company (the “Company”), and each of the Subsidiaries of
the Company listed on Annex A hereto (each such subsidiary, individually, a “US Subsidiary
Guarantor” and, collectively, “US Subsidiary Guarantors”; and together with Holdings
and the Company, collectively, the “US Guarantors”), and UBS AG, STAMFORD BRANCH, as US
collateral agent for the Secured Parties (in such capacity, together with its successors in such
capacity, the “US Collateral Agent”).
W I T N E S S E T H:
WHEREAS, (1) Holdings and the Borrowers have entered into a Revolving Credit Agreement, dated
as of October 13, 2010 (the “Credit Agreement”), with the banks, financial institutions and
other institutional lenders and investors from time to time parties thereto (each individually a
“Lender” and collectively, the “Lenders”), UBS AG, STAMFORD BRANCH, as US
Administrative Agent, US Collateral Agent, and a Letter of Credit Issuer, UBS AG, CANADA BRANCH, as
Canadian Administrative Agent and Canadian Collateral Agent, XXXXX FARGO CAPITAL FINANCE, LLC, as
Co-Collateral Agent and a Letter of Credit Issuer, DEUTSCHE BANK AG NEW YORK BRANCH, as a Letter of
Credit Issuer, DEUTSCHE BANK AG CANADA BRANCH, as a Letter of Credit Issuer and UBS LOAN FINANCE
LLC, as Swingline Lender, pursuant to which the Lenders have severally agreed to make loans to the
Borrowers and the Letter of Credit Issuers have agreed to issue letters of credit for the account
of the Borrowers upon the terms and subject to the conditions set forth therein, (2) one or more
Cash Management Banks may from time to time provide Cash Management Services pursuant to Secured
Cash Management Agreements to any Credit Party and (3) one or more Hedge Banks may from time to
time enter into Secured Hedging Agreements with any Credit Party (clauses (1), (2) and (3)
collectively, the “Extensions of Credit”);
WHEREAS, pursuant to the Canadian Guarantee, dated as of October 13, 2010 (the “Canadian
Guarantee”), each of the Canadian Borrowers (other than in respect of their own obligations)
and their subsidiaries party thereto (the “Canadian Guarantors” and together with the US
Guarantors, collectively, the “Guarantors”) have agreed to guarantee to the Canadian
Collateral Agent, for the benefit of the Secured Parties, the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or otherwise) of the Canadian
Obligations;
WHEREAS, Holdings is an Affiliate of the Company and each US Subsidiary Guarantor is a
Domestic Subsidiary of the Company;
WHEREAS, each US Guarantor acknowledges that it will derive substantial direct and indirect
benefit from the making of the Extensions of Credit; and
WHEREAS, it is a condition precedent to the obligations of the Lenders and the Letter of
Credit Issuers to make their respective Extensions of Credit to the Borrowers under the
Credit Agreement that the US Guarantors shall have executed and delivered this US Guarantee to
the US Collateral Agent for the benefit of the Secured Parties.
NOW, THEREFORE, in consideration of the premises and to induce the Agents and the Lenders to
enter into the Credit Agreement and to induce the Lenders and the Letter of Credit Issuers to make
their respective Extensions of Credit to the Borrowers under the Credit Agreement, to induce one or
more Cash Management Banks to provide Cash Management Services pursuant to Secured Cash Management
Agreements to any Credit Party and to induce one or more Hedge Banks to enter into Secured Hedging
Agreements with any Credit Party, the US Guarantors hereby agree with the US Collateral Agent, for
the benefit of the Secured Parties, as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
(including terms used in the preamble and recitals hereto) shall have the meanings given to them in
the Credit Agreement.
(b) The rules of construction and other interpretative provisions specified in Sections 1.2,
1.5, 1.6 and 1.7 of the Credit Agreement shall apply to this US Guarantee, including terms defined
in the preamble and recitals hereto.
(c) As used herein, the term “Termination Date” means the date on which all
Obligations are paid in full in cash (other than Cash Management Obligations under Secured Cash
Management Agreements, Hedging Obligations under Secured Hedging Agreements or contingent
indemnification obligations not then due and payable) and the Total Revolving Credit Commitment and
all Letters of Credit are terminated (other than Letters of Credit that have been Cash
Collateralized in accordance with Section 3.7 of the Credit Agreement following the termination of
the Total Revolving Credit Commitment).
2. Guarantee.
(a) Subject to the provisions of Section 2(b), each of the US Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees, as primary obligor and not merely as
surety, to the US Collateral Agent for the benefit of the Secured Parties, the prompt and complete
payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of
the Obligations (other than, in the case of any US Borrower that is also a US Guarantor, in respect
of its own obligations). In furtherance of the foregoing and not in limitation of any other right
that the US Collateral Agent or any other Secured Party has at law or in equity against any US
Guarantor by virtue hereof, upon the failure of any of the Borrowers or any other Credit Party to
pay any Obligation when and as the same shall become due (whether at the stated maturity, by
acceleration or otherwise), each US Guarantor hereby promises to and will forthwith pay, or cause
to be paid, to the US Collateral Agent for distribution to the applicable Secured Parties the
amount of such unpaid Obligation. Upon payment by any US Guarantor of any sums to the US
Collateral Agent as provided above, all rights of such US Guarantor against any of the Borrowers or
any other Guarantor arising as a result thereof by way of right of
subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be
subject to Sections 3 and 5 hereof.
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(b) Anything herein or in any other Credit Document to the contrary notwithstanding, the
maximum liability of each US Subsidiary Guarantor hereunder and under the other Credit Documents
shall in no event exceed the amount that can be guaranteed by such US Subsidiary Guarantor under
Applicable Laws relating to the insolvency of debtors.
(c) To the extent required by Section 13.5 of the Credit Agreement, each US Guarantor further
agrees to pay any and all reasonable and documented out-of-pocket costs and expenses (including all
reasonable fees and disbursements of counsel) that may be paid or incurred by the US Collateral
Agent or any other Secured Party 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 US Guarantor under this US Guarantee.
(d) Each US Guarantor agrees that the Obligations may at any time and from time to time exceed
the amount of the liability of such US Guarantor hereunder without impairing this US Guarantee or
affecting the rights and remedies of the US Collateral Agent or any other Secured Party hereunder.
(e) No payment or payments made by any of the Borrowers, any other Guarantor, any other
guarantor or any other Person or received or collected by the US Collateral Agent or any other
Secured Party from any of the Borrowers, any other 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 US Guarantor hereunder, which
shall, notwithstanding any such payment or payments other than payments made by such US Guarantor
in respect of the Obligations or payments received or collected from such US Guarantor in respect
of the Obligations, remain liable for the Obligations up to the maximum liability of such US
Guarantor hereunder until the Termination Date.
(f) Each US Guarantor agrees that whenever, at any time, or from time to time, it shall make
any payment to the US Collateral Agent or any other Secured Party on account of its liability
hereunder, it will notify the US Collateral Agent in writing that such payment is made under this
US Guarantee for such purpose.
(g) Each US Guarantor assumes all responsibility for being and keeping itself informed of the
Borrowers’ and each other Credit Party’s financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and
extent of the risks that such US Guarantor assumes and incurs hereunder, and agrees that none of
the US Collateral Agent or the other Secured Parties will have any duty to advise such US Guarantor
of information known to it or any of them regarding such circumstances or risks.
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3. Right of Contribution. Each US Guarantor hereby agrees that to the extent a
Guarantor shall have paid more than its proportionate share of any payment made hereunder,
such US Guarantor shall be entitled to seek and receive contribution from and against any
other US Guarantor hereunder (or, if applicable, any Canadian Guarantor under the Canadian
Guarantee) that has not paid its proportionate share of such payment. Each US Guarantor’s right of
contribution shall be subject to the terms and conditions of Section 5 hereof. The provisions of
this Section 3 shall in no respect limit the obligations and liabilities of any US Guarantor to the
US Collateral Agent and the other Secured Parties, and each US Guarantor shall remain liable to the
US Collateral Agent and the other Secured Parties for the full amount guaranteed by such US
Guarantor hereunder.
4. Right of Set-off. In addition to any rights and remedies of the Secured Parties
provided by Applicable Law, each US Guarantor hereby irrevocably authorizes each Secured Party at
any time and from time to time following the occurrence and during the continuance of an Event of
Default without notice to such US Guarantor or any other US Guarantor, any such notice being
expressly waived by each US Guarantor, upon any amount becoming due and payable by such US
Guarantor hereunder (whether at stated maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount 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 Secured Party to or for the credit or the account of such US
Guarantor. Each Secured Party shall notify such US Guarantor promptly of any such set-off and the
appropriation and application made by such Secured Party; provided that the failure to give
such notice shall not affect the validity of such set-off and appropriation and application.
5. No Subrogation. Notwithstanding any payment or payments made by any of the US
Guarantors hereunder or any set-off or appropriation and application of funds of any of the US
Guarantors by the US Collateral Agent or any other Secured Party, no US Guarantor shall be entitled
to be subrogated to any of the rights of the US Collateral Agent or any other Secured Party against
any of the Borrowers or any other Guarantor or any collateral security or guarantee or right of
offset held by the US Collateral Agent or any other Secured Party for the payment of the
Obligations, nor shall any US Guarantor seek or be entitled to seek any contribution or
reimbursement from any of the Borrowers or any other Guarantor in respect of payments made by such
US Guarantor hereunder, until the Termination Date. If any amount shall be paid to any US
Guarantor on account of such subrogation rights at any time prior to the Termination Date, such
amount shall be held by such US Guarantor in trust for the US Collateral Agent and the other
Secured Parties, segregated from other funds of such US Guarantor, and shall, forthwith upon
receipt by such US Guarantor, be turned over to the US Collateral Agent in the exact form received
by such US Guarantor (duly indorsed by such US Guarantor to the US Collateral Agent, if required),
to be applied against the Obligations, whether due or to become due, subject to the terms and
conditions of the Intercreditor Agreement and in accordance with Section 5.4 of the Security
Agreement.
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6. Amendments, etc. with Respect to the Obligations; Waiver of Rights. Except for
termination of a US Guarantor’s obligations hereunder as expressly provided in Section 24, each US
Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights
against any US Guarantor and without notice to or further assent by any US Guarantor, (a) any
demand for payment of any of the Obligations made by the US Collateral
Agent or any other Secured Party may be rescinded by such party and any of the Obligations
continued, (b) 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 US Collateral Agent or any other Secured Party,
(c) the Credit Agreement, the other Credit Documents and any other documents executed and delivered
in connection therewith, the Secured Cash Management Agreements and any other documents executed
and delivered in connection therewith and the Secured Hedging Agreements and any other documents
executed and delivered in connection therewith, may be amended, waived, modified, supplemented or
terminated, in whole or in part, in accordance with the terms of the applicable document and (d)
any collateral security, guarantee or right of offset at any time held by the US Collateral Agent
or any other Secured Party for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. Neither the US Collateral Agent nor any other Secured Party 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 US Guarantee or any property subject thereto. When making any
demand hereunder against any US Guarantor, the US Collateral Agent or any other Secured Party may,
but shall be under no obligation to, make a similar demand on any of the Borrowers or any other
Guarantor or other guarantor, and any failure by the US Collateral Agent or any other Secured Party
to make any such demand or to collect any payments from any of the Borrowers or any other Guarantor
or other guarantor or any release of any of the Borrowers or any other Guarantor or other guarantor
shall not relieve any US Guarantor in respect of which a demand or collection is not made or any US
Guarantor not so released of its 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 US Collateral
Agent or any other Secured Party against any US Guarantor. For the purposes hereof,
“demand” shall include the commencement and continuance of any legal proceedings.
7. Guarantee Absolute and Unconditional. Each US Guarantor waives any and all notice
of the creation, contraction, incurrence, renewal, extension, amendment, waiver or accrual of any
of the Obligations, and notice of or proof of reliance by the US Collateral Agent or any other
Secured Party upon this US Guarantee or acceptance of this US Guarantee, the Obligations or any of
them, shall conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended, waived or accrued, in reliance upon this US Guarantee; and all dealings between
any of the Borrowers and any of the US Guarantors, on the one hand, and the US Collateral Agent and
the other Secured Parties, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon this US Guarantee. Each US Guarantor waives promptness,
diligence, presentment, protest, notice of protest, demand for payment and notice of default,
acceleration or nonpayment and any other notice to or upon any of the Borrowers or any other
Guarantor with respect to the Obligations. Each US Guarantor understands and agrees that this US
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 other
Credit Document, any Secured Cash Management Agreement or any Secured Hedging Agreement, 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 US Collateral Agent or any other Secured
Party, (b) any defense, set-off or counterclaim (other than a defense of payment or performance)
that may at any time be available to or be asserted by any of the Borrowers against
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the US
Collateral Agent or any other Secured
Party or (c) any other circumstance whatsoever (with or without notice to or knowledge of any
of the Borrowers or such US Guarantor) that constitutes, or might be construed to constitute, an
equitable or legal discharge of any of the Borrowers for the Obligations, or of such US Guarantor
under this US Guarantee, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against any US Guarantor, the US Collateral Agent and any other Secured Party
may elect, but shall be under no obligation, to pursue such rights and remedies as it may have
against any of the Borrowers 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 US
Collateral Agent or any other Secured Party to pursue such other rights or remedies or to collect
any payments from any of the Borrowers 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 any of
the Borrowers or any such other Person or any such collateral security, guarantee or right of
offset, shall not relieve such US 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 US
Collateral Agent and the other Secured Parties against such US Guarantor. To the fullest extent
permitted by Applicable Law, each US Guarantor waives any defense arising out of any such election
even though such election operates, pursuant to Applicable Law, to impair or to extinguish any
right of reimbursement, subrogation, exoneration, contribution or indemnification or other right or
remedy of such US Guarantor against any of the Borrowers or any other Guarantor, as the case may
be, or any security. Each US Guarantor acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by the Credit Documents and that the
waivers set forth herein are knowingly made in contemplation of such benefit. This US Guarantee
shall remain in full force and effect and be binding in accordance with and to the extent of its
terms upon each US Guarantor and the successors and assigns thereof, and shall inure to the benefit
of the US Collateral Agent and the other Secured Parties, and their respective successors,
indorsees, transferees and assigns, until the Termination Date, notwithstanding that from time to
time during the term of the Credit Agreement, any Secured Cash Management Agreement and any Secured
Hedging Agreement, the Credit Parties may be free from any Obligations.
8. Subordination. Each US Guarantor hereby agrees that any Indebtedness of any US
Guarantor now or hereafter owing to any other US Guarantor, whether heretofore, now or hereafter
created (the “US Guarantor Subordinated Debt”), is hereby subordinated to all of the
Obligations until the Termination Date and that the US Guarantor Subordinated Debt shall not be
paid in whole or in part during the continuance of any Event of Default. In the event of any
insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other
similar proceedings in connection therewith, relative to any US Guarantor or to its property, and
in the event of any proceedings for voluntary liquidation, dissolution or other winding up of such
US Guarantor (except as expressly permitted by the Credit Agreement), whether or not involving
insolvency or bankruptcy, then, if an Event of Default has occurred and is continuing (a) the US
Collateral Agent shall be paid irrevocably in full in cash in immediately available funds in
respect of all amounts constituting the Obligations (other than Cash Management Obligations under
Secured Cash Management Agreements, Hedging Obligations under Secured Hedging Agreements or
contingent indemnification obligations not then due and payable) before any payee is entitled to
receive (whether directly or indirectly), or make any demands for, any payment on account of the US
Guarantor Subordinated Debt and (b) until the US Collateral Agent is paid irrevocably in full in
cash in immediately available
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funds in respect of all amounts
constituting the Obligations (other than Cash Management Obligations under Secured Cash
Management Agreements, Hedging Obligations under Secured Hedging Agreements or contingent
indemnification obligations not then due and payable), any payment or distribution to which such
payee would otherwise be entitled (other than debt securities of such US Guarantor that are
subordinated, to at least the same extent as this Section 8, to the payment of all US Guarantor
Subordinated Debt then outstanding (such securities being hereinafter referred to as “US
Restructured Debt Securities”)) shall be made to the US Collateral Agent. If any Event of
Default occurs and is continuing, then no payment or distribution of any kind or character shall be
accepted by or on behalf of the US Guarantor or any other Person on its behalf with respect to the
US Guarantor Subordinated Debt. If any payment or distribution of any character, whether in cash,
securities or other property (other than US Restructured Debt Securities), in respect of the US
Guarantor Subordinated Debt shall be received by any payee in violation of this Section 8 before
all Obligations shall have been paid irrevocably in full in cash in immediately available funds
(other than Cash Management Obligations under Secured Cash Management Agreements, Hedging
Obligations under Secured Hedging Agreements or contingent indemnification obligations not then due
and payable), such payment or distribution shall be held in trust for the benefit of the Secured
Parties, and shall be paid over the US Collateral Agent.
9. Representations and Warranties; Covenants. Each US Guarantor hereby (a) represents
and warrants that the representations and warranties as to it made by Holdings and the Borrowers in
Section 8 of the Credit Agreement are true and correct on each date as required by Section 7.1 of
the Credit Agreement and (b) agrees to take, or refrain from taking, as the case may be, each
action necessary to be taken or not taken, as the case may be, so that no Default or Event of
Default is caused by the failure to take such action or to refrain from taking such action by such
US Guarantor.
10. Reinstatement. This US 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 US Collateral Agent or
any other Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization
of any of the Borrowers or any other Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any of the Borrowers or
any other Guarantor or any substantial part of its property, or otherwise, all as though such
payments had not been made.
11. Payments. Each US Guarantor hereby guarantees that payments hereunder will be
paid to the US Collateral Agent without set-off or counterclaim in US Dollars at the US Collateral
Agent’s office specified in Section 13.2 of the Credit Agreement.
12. Authority of Agent. Each US Guarantor acknowledges that the rights and
responsibilities of the US Collateral Agent under this US Guarantee with respect to any action
taken by the US Collateral Agent or the exercise or non-exercise by the US Collateral Agent of any
option, right, request, judgment or other right or remedy provided for herein or resulting or
arising out of this US Guarantee shall, as between the US Collateral Agent and the other Secured
Parties, 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 US Collateral Agent and such US
Guarantor, the US Collateral Agent shall be conclusively presumed to be acting as agent for
the Secured Parties with full and valid authority so to act or refrain from acting, and no US
Guarantor shall be under any obligation, or entitlement, to make any inquiry respecting such
authority.
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13. Notices. All notices, requests and demands pursuant hereto shall be made in
accordance with Section 13.2 of the Credit Agreement. All communications and notices hereunder to
each US Guarantor shall be given to it in care of the Company at the Company’s address set forth in
Section 13.2 of the Credit Agreement.
14. Counterparts. This US Guarantee may be executed by one or more of the parties to
this US Guarantee on any number of separate counterparts (including by facsimile or other
electronic transmission (i.e., a “PDF” or “TIF” file)), and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. A set of the copies of this US
Guarantee signed by all the parties shall be lodged with the US Collateral Agent and the Company.
15. Severability. Any provision of this US Guarantee that 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. The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.
16. Integration. This US Guarantee, together with the other Credit Documents,
represents the agreement of each US Guarantor and the US Collateral Agent with respect to the
subject matter hereof, and there are no promises, undertakings, representations or warranties by
the US Collateral Agent or any other Secured Party relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Credit Documents.
17. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this US Guarantee may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by the affected US Guarantor(s) and
the US Collateral Agent in accordance with Section 13.1 of the Credit Agreement.
(b) Neither the US Collateral Agent nor any other Secured Party shall by any act (except by a
written instrument pursuant to Section 17(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 US Collateral Agent or any other Secured Party, 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 US Collateral
Agent or any other Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that the US
Collateral Agent or any Secured Party would otherwise have on any future occasion.
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(c) The rights, remedies, powers and privileges herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or remedies provided by
law.
18. Section Headings. The Section headings used in this US Guarantee are for
convenience of reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
19. Successors and Assigns. This US Guarantee shall be binding upon the successors
and assigns of each US Guarantor and shall inure to the benefit of the US Collateral Agent and the
other Secured Parties and their respective successors and assigns, except that no US Guarantor may
assign, transfer or delegate any of its rights or obligations under this US Guarantee without the
prior written consent of the US Collateral Agent unless permitted to do so under the Credit
Agreement.
20. Additional Guarantors. Each Domestic Subsidiary of any of the US Borrowers that
is required to become a party to this US Guarantee pursuant to Section 9.10 of the Credit Agreement
shall become a US Guarantor, with the same force and effect as if originally named as a US
Guarantor herein, for all purposes of this US Guarantee upon execution and delivery by such
Subsidiary of a Supplement in the form of Annex B hereto or in such other form reasonably
satisfactory to the US Collateral Agent. The execution and delivery of any instrument adding an
additional US Guarantor as a party to this US Guarantee shall not require the consent of any other
US Guarantor hereunder. The rights and obligations of each US Guarantor hereunder shall remain in
full force and effect notwithstanding the addition of any new US Guarantor as a party to this US
Guarantee.
21. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE, ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
22. Submission to Jurisdiction; Waivers. Each US Guarantor hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to
this US Guarantee and the other Credit Documents to which it is a party, or for recognition
and enforcement of any judgment in respect thereof, to the 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 shall 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;
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(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 US Guarantor at its address referred to in Section 13 hereof
or at such other address of which the US Collateral Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right of the US Collateral Agent or any
other Secured Party to effect service of process in any other manner permitted by law or
shall limit the right of the US Collateral Agent or any other Secured Party 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 Section 22 any special,
exemplary, punitive or consequential damages.
23. GOVERNING LAW. THIS GUARANTEE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
24. Termination or Release.
(a) This US Guarantee shall terminate on the Termination Date.
(b) (i) A US Subsidiary Guarantor shall automatically be released from its obligations
hereunder upon the consummation of any transaction permitted by the Credit Agreement, as a result
of which such US Subsidiary Guarantor ceases to be a Restricted Subsidiary or otherwise becomes an
Excluded Subsidiary; provided that the Required Lenders shall have consented to such
transaction (to the extent such consent is required by the Credit Agreement) and the terms of such
consent did not provide otherwise, and (ii) Holdings (or the previous New Holdings, as the case may
be) shall automatically be released from its obligations hereunder in accordance with the formation
or acquisition of a New Holdings that satisfies the conditions set forth in the Credit Agreement.
(c) In connection with any termination or release, the US Collateral Agent shall execute and
deliver to any US Guarantor, at such US Guarantor’s expense, all documents that such US Guarantor
shall reasonably request to evidence such termination or release. Any execution and delivery of
documents pursuant to this Section 24 shall be without recourse to or warranty by the US Collateral
Agent.
[Signature Pages Follow]
-10-
IN WITNESS WHEREOF, each of the undersigned has caused this US Guarantee to be duly executed
and delivered by its duly authorized officer as of the day and year first above written.
| XXXXX INTERMEDIATE HOLDINGS CORP., as Guarantor, |
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| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | XXXXX XXXXXXX | |||
| Title: | VICE PRESIDENT | |||
[Signature Page to the US Guarantee]
| ASSOCIATED MATERIALS, LLC, as Guarantor, |
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| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | XXXXX XXXXXXX | |||
| Title: | VICE PRESIDENT | |||
[Signature Page to the US Guarantee]
| GENTEK HOLDINGS, LLC, as Guarantor, |
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| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | XXXXX XXXXXXX | |||
| Title: | VICE PRESIDENT | |||
[US Guarantee]
| GENTEK BUILDING PRODUCTS, INC., as Guarantor, |
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| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | XXXXX XXXXXXX | |||
| Title: | VICE PRESIDENT | |||
[US Guarantee]
| XXXXX NEW FINANCE, INC., as Guarantor, |
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| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | XXXXX XXXXXXX | |||
| Title: | VICE PRESIDENT | |||
[US Guarantee]
| UBS AG, STAMFORD BRANCH, as US Collateral Agent |
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| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director Banking Products Services. US | |||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director Banking Products Services. US | |||
[US Guarantee]
ANNEX A
TO THE US GUARANTEE
TO THE US GUARANTEE
US SUBSIDIARY GUARANTORS
Gentek Holdings, LLC
Gentek Building Products, Inc.
Xxxxx New Finance, Inc.
Gentek Building Products, Inc.
Xxxxx New Finance, Inc.
A-1
ANNEX B
TO THE US GUARANTEE
TO THE US GUARANTEE
SUPPLEMENT NO. [ ], dated as of
[ ], 20[ ] (this
“Supplement”), to the US GUARANTEE, dated as of October 13, 2010 (this “US
Guarantee”), made among XXXXX INTERMEDIATE HOLDINGS CORP., a Delaware corporation
(“Holdings”), ASSOCIATED MATERIALS, LLC, a Delaware limited liability company (the
“Company”), and each of the Subsidiaries of the Company listed on Annex A thereto (each
such subsidiary, individually, a “US Subsidiary Guarantor” and, collectively, “US
Subsidiary Guarantors”; and together with Holdings and the Company, collectively, the “US
Guarantors”), and UBS AG, STAMFORD BRANCH, as US collateral agent for the Secured Parties (in
such capacity, together with its successors in such capacity, the “US Collateral Agent”).
A. Reference is made to the Revolving Credit Agreement, dated as of October 13, 2010 (the
“Credit Agreement”), among Holdings, the Company, GENTEK HOLDINGS, LLC and GENTEK BUILDING
PRODUCTS, INC. (together with the Company, the “US Borrowers”), ASSOCIATED MATERIALS CANADA
LIMITED, GENTEK CANADA HOLDINGS LIMITED and GENTEK BUILDING PRODUCTS LIMITED PARTNERSHIP (each, a
“Canadian Borrower” and collectively the “Canadian Borrowers”; and together with
the US Borrowers, the “Borrowers”), the banks, financial institutions and other
institutional lenders and investors from time to time parties thereto (each individually a
“Lender” and collectively, the “Lenders”), UBS AG, STAMFORD BRANCH, as US
Administrative Agent, US Collateral Agent, and a Letter of Credit Issuer, UBS AG, CANADA BRANCH, as
Canadian Administrative Agent and Canadian Collateral Agent, XXXXX FARGO CAPITAL FINANCE, LLC, as
Co-Collateral Agent and a Letter of Credit Issuer, DEUTSCHE BANK AG NEW YORK BRANCH, as a Letter of
Credit Issuer, DEUTSCHE BANK AG CANADA BRANCH, as a Letter of Credit Issuer and UBS LOAN FINANCE
LLC, as Swingline Lender.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the US Guarantee. The rules of construction and other interpretative
provisions specified in Section 1(b) of the US Guarantee shall apply to this Supplement, including
terms defined in the preamble and recitals hereto.
C. The US Guarantors have entered into the US Guarantee in order to induce the Agents, the
Lenders and the Letter of Credit Issuers to enter into the Credit Agreement and to induce the
Lenders and the Letter of Credit Issuers to make their respective Extensions of Credit to the
Borrowers under the Credit Agreement, to induce one or more Cash Management Banks to provide Cash
Management Services pursuant to Secured Cash Management Agreements to any Credit Party and to
induce one or more Hedge Banks to enter into Secured Hedging Agreements with any Credit Party.
Section 9.10 of the Credit Agreement and Section 20 of the US Guarantee provide that additional
Subsidiaries may become US Guarantors under the US Guarantee by execution and delivery of an
instrument in the form of this Supplement. Each undersigned Subsidiary (each a “New
Guarantor”) is executing this Supplement in accordance with the requirements of the Credit
Agreement to become a US Guarantor under the US Guarantee in order to induce the Lenders and the
Letter of Credit Issuers to make additional Extensions of Credit to the Borrowers under the Credit
Agreement, to induce one or more Cash Management Banks to provide Cash Management Services pursuant
to Secured Cash Management Agreements to any Credit
Party and to induce one or more Hedge Banks to enter into Secured Hedging Agreements with any
Credit Party and as consideration for Extensions of Credit previously made, Cash Management
Services previously provided, and Secured Hedging Agreements previously entered into.
B-1
Accordingly, the US Collateral Agent and each New Guarantor agrees as follows:
SECTION 1. In accordance with Section 20 of the US Guarantee, each New Guarantor by its
signature below becomes a US Guarantor under the US Guarantee with the same force and effect as if
originally named therein as a US Guarantor and each New Guarantor hereby (a) agrees to all the
terms and provisions of the US Guarantee applicable to it as a US Guarantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a US Guarantor
thereunder are true and correct on and as of the date hereof (except to the extent that they
expressly relate to an earlier date, in which case they shall be true and correct as of such
earlier date). Each reference to a US Guarantor in the US Guarantee shall be deemed to include
each New Guarantor. The US Guarantee is hereby incorporated herein by reference.
SECTION 2. Each New Guarantor represents and warrants to the US Collateral Agent and the other
Secured Parties that this Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and
other similar laws relating to or affecting creditors’ rights generally and general principles of
equity (whether considered in a proceeding in equity or law).
SECTION 3. This Supplement may be executed by one or more of the parties to this Supplement on
any number of separate counterparts (including by facsimile or other electronic transmission (i.e.,
a “PDF” or “TIF” file)), and all of said counterparts taken together shall be deemed to constitute
one and the same instrument. A set of the copies of this Supplement signed by all the parties
shall be lodged with the US Borrowers and the US Collateral Agent. This Supplement shall become
effective as to each New Guarantor when the US Collateral Agent shall have received counterparts of
this Supplement that, when taken together, bear the signatures of such New Guarantor and the US
Collateral Agent.
SECTION 4. Except as expressly supplemented hereby, the US Guarantee shall remain in full
force and effect.
SECTION 5. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 6. Any provision of this Supplement that 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 in the US Guarantee, and
any such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
B-2
SECTION 7. All notices, requests and demands pursuant hereto shall be made in accordance with
Section 13.2 of the Credit Agreement. All communications and notices hereunder to each New
Guarantor shall be given to it in care of the Company at the Company’s address set forth in Section
13.2 of the Credit Agreement.
SECTION 8. Each New Guarantor agrees to reimburse the US Collateral Agent for its reasonable
and documented out-of-pocket costs and expenses in connection with this Supplement, including the
reasonable fees, disbursements and other charges of counsel for the US Collateral Agent.
B-3
IN WITNESS WHEREOF, each New Guarantor and the US Collateral Agent have duly executed this
Supplement to the US Guarantee as of the day and year first above written.
| [NEW GUARANTOR(S)], | ||||
By:
|
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| Title: | ||||
| UBS AG, STAMFORD BRANCH, as US Collateral Agent, |
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By:
|
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| Title: | ||||
By:
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| Title: | ||||
[Signature Page to US Guarantee Supplement]
