EXHIBIT 10.6
FORM OF
SUPERHOLDCO GUARANTY
This AMENDED AND RESTATED SUPERHOLDCO GUARANTY, dated as of December
22, 2004 (as amended, supplemented, amended and restated or otherwise modified
from time to time, this "Guaranty"), is made by AMH HOLDINGS, INC., a Delaware
corporation (the "Guarantor"), in favor of UBS AG, STAMFORD BRANCH, as the
administrative agent (together with its successor(s) thereto, in such capacity
the "Administrative Agent") for each of the Secured Parties, and amends and
restates the Superholdco Guarantee dated March 19, 2004.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Second Amended and Restated Credit Agreement,
dated as of December 22, 2004 (and as further amended, supplemented, amended and
restated or otherwise modified from time to time the "Credit Agreement"), among
Associated Materials Incorporated, a corporation organized and existing under
the laws of Delaware (the "U.S. Borrower"), Gentek Building Products Limited, a
corporation organized and existing under the laws of Ontario, Canada (the
"Canadian Borrower" and, together with the U.S. Borrower, each a "Borrower" and
collectively the "Borrowers"), Associated Materials Holdings Inc., a corporation
organized and existing under the laws of Delaware ("Holdings"), the Guarantor,
the various financial institutions and other Persons as are or may become
parties thereto, as the Lenders, UBS AG, Stamford Branch, as U.S. Administrative
Agent, Canadian Imperial Bank of Commerce, as Canadian Administrative Agent,
Citigroup Global Markets Inc., as Syndication Agent, General Electric Capital
Corporation and National City Bank, as Co-Documentation Agents, and UBS
Securities LLC and Citigroup Global Markets Inc., as Joint Lead Arrangers, the
Lenders and the Issuers have extended Commitments to make Credit Extensions to
the Borrowers; and
NOW THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, the Guarantor agrees, for the benefit of each
Secured Party, as follows:
I.
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" and "Borrowers" are defined in the first recital.
"Canadian Borrower" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
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EXHIBIT 10.6
"Guarantor" is defined in the preamble.
"Guarantor Indenture" means the Indenture, dated as of March 4, 2004,
between the Guarantor and Wilmington Trust Company, as Trustee, pursuant to
which the Guarantor Notes are issued.
"Guarantor Note Documents" means the Guarantor Indenture, the
Guarantor Notes and all other instruments, agreements or other documents
evidencing or governing the Guarantor Notes.
"Guarantor Notes" means the Senior Discount Notes due 2014 issued by
the Guarantor on March 4, 2004, resulting in gross cash proceeds not to exceed
$258,265,220.
"Guaranty" is defined in the preamble.
"Holdings" is defined in the first recital.
"U.S. Borrower" is defined in the first recital.
SECTION 1.2 Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Guaranty, including
its preamble and recitals, have the meanings provided in the Credit Agreement.
II.
GUARANTY PROVISIONS
SECTION 2.1 Guaranty. The Guarantor hereby absolutely, unconditionally and
irrevocably
1. guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Obligations of the Borrowers and each other Obligor
now or hereafter existing, whether for principal, interest, fees, expenses
or otherwise (including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United States
Bankruptcy Code, 11 U.S.C. ss. 362(a), and the operation of Sections 502(b)
and 506(b) of the United States Bankruptcy Code, 11 U.S.C. ss. 502(b) and
ss. 506(b)), and
2. indemnifies and holds harmless each Secured Party for any and all
costs and expenses (including reasonable attorney's fees and expenses)
incurred by such Secured Party in enforcing any rights under this Guaranty;
provided that the Guarantor shall only be liable under this Guaranty for
the maximum amount of the liability that can be hereby incurred without
rendering this Guaranty, as it relates to the Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer,
and not for any greater amount. This Guaranty constitutes a guaranty of
payment when due and not of collection, and the Guarantor specifically
agrees that it shall not be necessary or re-
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EXHIBIT 10.6
quired that any Secured Party exercise any right, assert any claim or
demand or enforce any remedy whatsoever against the Borrowers or any other
Obligor (or any other Person) before or as a condition to the obligations
of the Guarantor hereunder.
SECTION 2.2 Acceleration of Guaranty. The Guarantor agrees that, in the
event of the occurrence of an Event of Default described under Section 8.1.9 of
the Credit Agreement with respect to either Borrower, and if such Event of
Default shall occur at a time when any of the Obligations of any Obligor may not
then be due and payable, the Guarantor agrees that it shall pay to the
Administrative Agent for the account of the Secured Parties forthwith the full
amount which would be payable hereunder by the Guarantor if all such Obligations
were then due and payable.
SECTION 2.3 Guaranty Absolute, etc. This Guaranty shall in all respects be
a continuing, absolute, unconditional and irrevocable guaranty of payment, and
shall remain in full force and effect until the Termination Date has occurred.
The Guarantor guarantees that the Obligations of the Borrowers and each other
Obligor will be paid strictly in accordance with the terms of each Loan Document
under which they arise, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Secured Party with respect thereto. The liability of the Guarantor
under this Guaranty shall be absolute, unconditional and irrevocable
irrespective of:
(a) any lack of validity, legality or enforceability of any Loan
Document;
(b) the failure of any Secured Party (i) to assert any claim or demand
or to enforce any right or remedy against either Borrower or any other
Obligor or any other Person (including any other guarantor) under the
provisions of any Loan Document or otherwise, or (ii) to exercise any right
or remedy against any other guarantor (including the Guarantor) of, or
collateral securing, any Obligations of either Borrower or any other
Obligor;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of either Borrower or any
other Obligor, or any other extension, compromise or renewal of any
Obligation of either Borrower or any other Obligor;
(d) any reduction, limitation, impairment or termination of any
Obligations of either Borrower or any other Obligor for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and the Guarantor hereby waives
any right to or claim of) any defense or setoff, counterclaim, recoupment
or termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any other
event or occurrence affecting, any Obligations of either Borrower or any
other Obligor or otherwise;
(e) any amendment to, rescission, waiver or other modification of, or
any consent to departure from, any of the terms of any Loan Document;
(f) any addition, exchange or release of any collateral or of any
Person that is (or will become) a guarantor (including the Guarantor) of
the Obligations, or surrender or
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EXHIBIT 10.6
non-perfection of any collateral, or any amendment to or waiver or release
or addition to, or consent to or departure from, any other guaranty, held
by any Secured Party securing any of the Obligations of either Borrower or
any other Obligor; or
(g) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, the Obligations of
either Borrower or any other Obligor, any surety or any guarantor.
SECTION 2.4 Reinstatement, etc. The Guarantor agrees that this Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded or
must otherwise be restored to any Obligor by any Secured Party, upon the
insolvency, bankruptcy or reorganization of any Obligor or otherwise, all as
though such payment had not been made.
SECTION 2.5 Waiver, etc. The Guarantor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Obligations
of the Borrowers or any other Obligor and of this Guaranty and any requirement
that any Secured Party protect, secure, perfect or insure any security interest
or Lien, or any property subject thereto, or exhaust any right or take any
action against either Borrower, any other Obligor or any other Person (including
any other guarantor) or entity or any collateral securing the Obligations of the
Borrowers or such Obligor.
SECTION 2.6 Postponement of Subrogation, etc. The Guarantor hereby agrees
that, at all times prior to the Termination Date, it will not exercise any
rights which it may acquire by way of rights of subrogation under this Guaranty,
by any payment made hereunder or otherwise. Any amount paid to the Guarantor on
account of any such subrogation rights prior to the Termination Date shall be
held in trust for the benefit of the Secured Parties and shall immediately be
paid to the Administrative Agent for the benefit of the Secured Parties and
credited and applied against the Obligations of the Borrowers and each other
Obligor, whether matured or unmatured, in accordance with the terms of the
Credit Agreement. In furtherance of the foregoing, the Guarantor shall, at all
times prior to the Termination Date, refrain from taking any action or
commencing any proceeding against the Borrowers or any other Obligor (or any of
its successors or assigns, whether in connection with a bankruptcy proceeding or
otherwise) to recover any amounts in respect of payments made under this
Guaranty to any Secured Party.
SECTION 2.7 Successors, Transferees and Assigns; Transfers of Notes, etc.
This Guaranty shall (i) be binding upon the Guarantor, and its successors,
transferees and assigns; and (ii) inure to the benefit of and be enforceable by
the Administrative Agent and each other Secured Party. Without limiting the
generality of clause (ii), any Lender may assign or otherwise transfer (in whole
or in part) any Note or Credit Extension held by it to any other Person or
entity, and such other Person or entity shall thereupon become vested with all
rights and benefits in respect thereof granted to such Lender under any Loan
Document (including this Guaranty) or otherwise, subject, however, to any
contrary provisions in such assignment or transfer, and to the provisions of
Section 12.11 and Article XI of the Credit Agreement.
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EXHIBIT 10.6
III.
REPRESENTATIONS AND WARRANTIES
In order to induce the Secured Parties to make Credit Extensions under
the Credit Agreement, and to induce the Secured Parties to enter into Rate
Protection Agreements, the Guarantor represents and warrants to each Secured
Party as set forth below.
SECTION 3.1 Organization, etc. The Guarantor (i) is validly organized and
existing and in good standing under the laws of the state or jurisdiction of its
incorporation or organization, (ii) is duly qualified to do business and is in
good standing as a foreign entity in each jurisdiction where the nature of its
business requires such qualification and where the failure to be so qualified
could reasonably be expected to have a Material Adverse Effect, and (iii) has
full corporate, partnership or limited liability company power and authority, as
the case may be, to own and hold under lease its property and to conduct its
business substantially as currently conducted by it.
SECTION 3.2 Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Guarantor of this Guaranty are within the
Guarantor's corporate power, have been duly authorized by all necessary
corporate action, and do not (i) contravene (A) the Guarantor's Organic
Documents, (B) any material contractual restriction binding on or affecting the
Guarantor, (C) any court decree or order binding on or affecting the Guarantor
or (D) any material law or governmental regulation binding on or affecting the
Guarantor, or (ii) result in, or require the creation or imposition of, any Lien
on the Guarantor's properties.
SECTION 3.3 Government Approval, Regulation, etc. No material authorization
or approval or other action by, and no material notice to or filing with, any
Governmental Authority or other Person is required for (i) the due execution,
delivery or performance by the Guarantor of this Guaranty or (ii) the conduct of
the business of the Guarantor as currently conducted by it.
SECTION 3.4 Validity, etc. This Guaranty constitutes the legal, valid and
binding obligation of the Guarantor, enforceable against it in accordance with
its terms (except, in any case, as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and by principles of equity).
SECTION 3.5 Financial Condition of Each Obligor. The Guarantor has
knowledge of each Borrower's and each other Obligor's financial condition and
affairs and has adequate means to obtain from the Borrowers and each such other
Obligor on an ongoing basis information relating thereto and to the Borrowers'
and each such other Obligor's ability to pay and perform its respective
Obligations, and agrees to assume the responsibility for keeping, and to keep,
so informed for so long as this Guaranty is in effect. The Guarantor
acknowledges and agrees that the Secured Parties shall have no obligation to
investigate the financial condition or affairs of the Borrowers or any other
Obligor for the benefit of the Guarantor nor to advise the Guarantor of any fact
respecting, or any change in, the financial condition or affairs of the
Borrowers or any other Obligor that might become known to any Secured Party at
any time, whether or not such Secured Party knows or believes or has reason to
know or believe that any such fact or change is unknown to the Guarantor, or
might (or does) materially increase the risk of the Guarantor as
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EXHIBIT 10.6
guarantor, or might (or would) affect the willingness of the Guarantor to
continue as a guarantor of the Obligations.
SECTION 3.6 Best Interests. It is in the best interests of the Guarantor to
execute this Guaranty inasmuch as the Guarantor will derive substantial direct
and indirect benefits from the Credit Extensions made from time to time to the
Borrowers by the Lenders and the Issuers pursuant to the Credit Agreement and
the execution and delivery of Rate Protection Agreements between the Borrowers
or any other Obligor and certain Secured Parties, and the Guarantor agrees that
the Secured Parties are relying on this representation in agreeing to continue
to make Credit Extensions to the Borrowers.
SECTION 3.7 Solvency. After giving effect to this Guaranty and the issuance
of the Guarantor Notes, the Guarantor, Holdings, each Borrower and each
Subsidiary Guarantor (all taken together) are Solvent.
IV.
COVENANTS
SECTION 4.1 Limitation on Redemption and Prepayment of Certain
Indebtedness. The Guarantor will not, nor will it make an offer to, (i) redeem
or repurchase any Guarantor Notes before the Termination Date, except for
redemptions or repurchases made in connection with the sale or issuance of the
Capital Stock of the Guarantor and so long as all amounts due under Section
3.1.1(h) of the Credit Agreement are paid (to the extent required to be paid)
before such redemption or repurchase, (ii) make any payment or prepayment of
principal of, or premium or interest on, any Subordinated Debt (A) other than
the stated, scheduled payment of principal or interest set forth in the
applicable Other Debt Documents related to such Indebtedness, or (B) which would
violate the terms of the Credit Agreement, this Guaranty or the applicable Other
Debt Documents related to such Indebtedness, or (iii) make any deposit
(including the payment of amounts into a sinking fund or other similar fund) for
any of the foregoing purposes.
SECTION 4.2 Limitation on Indebtedness. The Guarantor will not create,
incur, assume or permit to exist any Indebtedness, other than (i) this Guaranty,
(ii) unsecured Indebtedness in respect of the Guarantor Notes in an aggregate
principal amount at maturity not to exceed $446,000,000 (and which resulted in
gross cash proceeds not to exceed $258,265,220), (iii) Indebtedness arising from
the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of business so long as
such Indebtedness is extinguished within three Business Days of the incurrence
thereof, (iv) unsecured Indebtedness incurred in connection with repurchases of
its Capital Stock from employees, officers, directors or consultants of the
Guarantor or its Subsidiaries upon their ceasing to be employees, officers,
directors or consultants of the Guarantor or any such Subsidiary, as the case
may be, or upon such Person's death or disability (provided that the aggregate
principal amount of such repurchases funded with Indebtedness does not exceed
$7,500,000 in the aggregate outstanding at any time), (v) unsecured Indebtedness
owing to its Subsidiaries, as evidenced by notes in form and substance similar
to Intercompany Notes, (vi) unsecured Indebtedness in respect of guarantees of
any permitted Indebtedness of its Subsidiaries, (vii) unsecured Indebtedness in
respect of Permitted Seller Notes and Qualify-
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EXHIBIT 10.6
ing Subordinated Debt (provided that the aggregate principal amount of Permitted
Seller Notes issued, when aggregated with the aggregate principal amount of
Indebtedness assumed or acquired pursuant to clause (l) of Section 7.2.2 of the
Credit Agreement, does not exceed $10,000,000 in the aggregate with respect to
Permitted Seller Notes issued by Superholdco, Holdings and each Borrower (as
such amount may be increased through interest that is capitalized or
paid-in-kind); and (viii) unsecured Indebtedness in a principal amount at any
time outstanding not to exceed $7,500,000 in the aggregate with all Indebtedness
incurred pursuant to this clause (viii) and clause (v) of Section 7.2.2 of the
Credit Agreement; provided that any such Indebtedness referred to in clause (iv)
above is subordinated to the Obligations on terms no less favorable to the
Secured Parties than those set forth on Exhibit J to the Credit Agreement;
provided however that in the case of any guaranty of any Indebtedness referred
to in clause (vi) above, to the extent that such guaranteed Indebtedness is
subordinated to the Obligations, the guaranty thereof by the Guarantor shall be
subordinated to the Obligations to the same extent; provided further that no
Indebtedness otherwise permitted by clause (vii) (other than Permitted Seller
Notes) or (viii) shall be assumed or otherwise incurred if a Default has
occurred and is then continuing or would result therefrom.
SECTION 4.3 Modification of Certain Agreements. The Guarantor will not
consent to any amendment, supplement, waiver or other modification of, or enter
into any forbearance from exercising any rights with respect to the terms or
provisions, (i) any of the Guarantor Note Documents, other than any amendment,
supplement, waiver or modification for which no fee is payable to the holders of
the Guarantor Notes and which (x) extends the date or reduces the amount of any
required repayment, prepayment or redemption of the principal of the Guarantor
Notes, (y) reduces the rate or extends the date for payment of interest, premium
(if any) or fees payable on the Guarantor Notes or (z) makes the covenants,
events of default or remedies in respect of the Guarantor Notes less restrictive
on the obligors thereunder, or (ii) any Organic Document of the Guarantor, other
than any amendment, supplement, waiver or modification which would not impair,
or in any manner be adverse to, the rights, interests or obligations of any
Secured Party under any Loan Document.
SECTION 4.4 Maintenance of Corporate Separateness. The Guarantor will, and
will cause each of its Subsidiaries to, satisfy customary corporate formalities.
SECTION 4.5 Activities of the Guarantor. The Guarantor will not engage in
any business activity except those businesses in which the Guarantor is engaged
as of the date hereof, businesses which are reasonable extensions thereof and
businesses reasonably incidental or complementary thereto or expansions thereof.
SECTION 4.6 Use of Funds Paid Pursuant to Sections 7.2.6(g) and (h) of the
Credit Agreement. The Guarantor will either (x) immediately pay to Parentholdco
any amounts paid to it pursuant to Section 7.2.6(g)(x), (g)(y) or (h) of the
Credit Agreement, which amounts will be used as contemplated such Section
7.2.6(g)(x), (g)(y) or (h), as applicable, or (y) deposit (on the date received)
such amounts in a deposit account in which the U.S. Administrative Agent shall
have a perfected first priority security interest (which shall be a Deposit
Account to be established pursuant to the Superholdco Pledge Agreement) and will
not use any such amounts for any purpose other than (x) as described in the
applicable Section 7.2.6(g) or (h) or (y) as otherwise permitted pursuant to
Section 4.5 of the Superholdco Pledge Agreement; provided that no payment
pursuant to clause (x) hereof shall exceed the
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EXHIBIT 10.6
lesser of (i) 50% of the amount permitted to be distributed pursuant to Sections
7.2.6(g)(x), (g)(y) and (h) of the Credit Agreement, as applicable and (ii) the
amount necessary to make the full payments referred to such Sections
7.2.6(g)(x), (g)(y) and (h), as applicable; (and in the event that pursuant to
the second proviso at the end of Section 7.2.6 the amount permitted under
Section 7.26(g)(x), (g)(y) and (h) shall have been reduced to 100%, then all of
the amount permitted to be so distributed).
V.
MISCELLANEOUS PROVISIONS
SECTION 5.1 Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof.
SECTION 5.2 Binding on Successors, Transferees and Assigns; Assignment. In
addition to, and not in limitation of, Section 2.7, this Guaranty shall be
binding upon the Guarantor and its successors, transferees and assigns and shall
inure to the benefit of and be enforceable by each Secured Party and its
successors, transferees and assigns (to the fullest extent provided pursuant to
Section 2.7); provided that, except as provided in the Credit Agreement, this
Guaranty may not be discharged and the Guarantor may not assign any of its
obligations hereunder without the prior written consent of the Required Lenders
(or to the extent required pursuant to the Credit Agreement, all Lenders).
SECTION 5.3 Amendments, etc. No amendment to or waiver of any provision of
this Guaranty, nor consent to any departure by the Guarantor herefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Administrative Agent (on behalf of the Lenders or the Required Lenders, as the
case may be, pursuant to Section 12.1 of the Credit Agreement) and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 5.4 Notices. All notices and other communications provided
hereunder shall be in writing (including by facsimile) and addressed, delivered
or transmitted, if to the Guarantor, at the address or facsimile number of the
Borrowers specified in the Credit Agreement, and if to the Administrative Agent,
at its address or facsimile number specified in the Credit Agreement, or at such
other address or facsimile number as may be designated by any such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid or if properly addressed and sent by prepaid courier service,
shall be deemed given when received; any notice, if transmitted by facsimile,
shall be deemed given when the confirmation of transmission thereof is received
by the transmitter.
SECTION 5.5 No Waiver; Remedies. In addition to, and not in limitation of,
Section 2.3 and Section 2.5, no failure on the part of any Secured Party to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
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EXHIBIT 10.6
SECTION 5.6 Headings. The various headings of this Guaranty are inserted
for convenience only and shall not affect the meaning or interpretation of this
Guaranty or any provisions hereof.
SECTION 5.7 Setoff. Each Secured Party shall, upon the occurrence of any
Event of Default described in Section 8.1.9 of the Credit Agreement with respect
to either Borrower or, with the consent of the Required Lenders, upon the
occurrence and during the continuance of any other Event of Default, have the
right to appropriate and apply to the payment of the Obligations owing to it
(whether or not then due), and (as security for such Obligations) the Guarantor
hereby grants to each Secured Party a continuing security interest in, any and
all balances, credits, deposits, accounts or moneys of the Guarantor then or
thereafter maintained with such Secured Party; provided that any such
appropriation and application shall be subject to the provisions of Section 4.8
of the Credit Agreement. Each Secured Party agrees promptly to notify the
Guarantor, the Borrowers and the Administrative Agent after any such setoff and
application made by such Secured Party; provided further that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of each Secured Party under this Section are in addition to other
rights and remedies (including other rights of setoff under applicable law or
otherwise) which such Secured Party may have.
SECTION 5.8 Severability. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Guaranty
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 5.9 Governing Law; Entire Agreement. THIS GUARANTY SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK). This Guaranty constitutes the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersedes any prior agreements, written or oral, with respect hereto.
SECTION 5.10 Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY SECURED PARTY OR THE GUARANTOR IN
CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF
THE STATE OF NEW YORK LOCATED IN THE CITY OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE GUARANTOR IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK IN CARE OF THE BORROWERS AT THE
ADDRESS OF THE BORROWERS SPECIFIED IN THE
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EXHIBIT 10.6
CREDIT AGREEMENT. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE
GUARANTOR HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER LOAN
DOCUMENTS.
SECTION 5.11 Waiver of Jury Trial. THE ADMINISTRATIVE AGENT (ON BEHALF OF
THE SECURED PARTIES) AND THE GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY AND EACH OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF SUCH SECURED PARTIES AND THE GUARANTOR IN CONNECTION
HEREWITH OR THEREWITH. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTIES ENTERING INTO THE
LOAN DOCUMENTS.
SECTION 5.12 Counterparts. This Guaranty may be executed by the parties
hereto in several counterparts, each of which shall be an original and all of
which shall constitute together but one and the same agreement.
F-3-10
EXHIBIT 10.6
IN WITNESS WHEREOF, each of the parties hereto has caused this
Guaranty to be duly executed and delivered by its Authorized Officer as of the
date first above written.
AMH HOLDINGS, INC.
By:
-------------------------------------
Name:
Title:
F-3-11
EXHIBIT 10.6
ACCEPTED BY:
UBS AG, STAMFORD BRANCH,
as Administrative Agent
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
F-3-12