Exhibit 4.1


 


 


SUPPLEMENTAL INDENTURE


 


 


dated as of March 31, 2005


 


among


 


EURAMAX INTERNATIONAL, INC. and


EURAMAX INTERNATIONAL HOLDINGS B.V.,


as Issuers,


 


 


GUTTER ACQUISITION, INC.,


The Guarantor Party Hereto


 


 


and


 


JPMORGAN CHASE BANK, N.A.,

as Trustee


 










 


8 1/2% Senior Subordinated Notes due 2011


 





















 


THIS SUPPLEMENTAL INDENTURE (this “Supplemental
Indenture”), is dated as of March 31, 2005, among Euramax
International, Inc., a Delaware corporation (the “Company”), Euramax
International Holdings B.V., a Dutch registered company (“Euramax B.V.”
and together with the Company, the “Issuers”), and Gutter Acquisition,
Inc., a Delaware corporation and a subsidiary of Euramax International, Inc. (the
“Guarantor”) and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan
Chase Bank), as trustee (the “Trustee”).


 


RECITALS


 


WHEREAS, the Issuers, the Guarantors named therein and
the Trustee entered into the Indenture, dated as of August 6, 2003, as
heretofore supplemented (the “Indenture”), relating to the issuance of
the Issuers’ 8 1/2% Senior Subordinated Notes due 2011;


 


WHEREAS, the Indenture provides that under certain
circumstances Restricted Subsidiaries shall execute and deliver to the Trustee
a supplemental indenture pursuant to which such Restricted Subsidiary shall
guarantee the Company’s obligations under the Securities and the Indenture on
the terms and conditions set forth herein; as a condition to the purchase of
the Securities by the Holders, the Company agreed pursuant to Section 4.20
of the Indenture to cause any Restricted Subsidiaries to Guarantee the payment
of the Securities in accordance therewith;


 


WHEREAS, pursuant to Section 10.01 of the
Indenture, the Trustee is authorized to execute and deliver this Supplemental
Indenture.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the premises and
mutual covenants herein contained and intending to be legally bound, the
parties to this Supplemental Indenture hereby agree as follows:


 


Section 1.                                            Definitions.  Capitalized terms used herein and not
otherwise defined herein are used as defined in the Indenture.


 


Section 2.                                            Party to Indenture.  The Guarantor, by its execution of this
Supplemental Indenture, agrees to be a Guarantor under the Indenture and to be
bound by the terms of the Indenture applicable to Guarantors.


 


Section 3.                                            The Guarantee; Subordination.  Subject to the provisions of this
Supplemental Indenture and the Indenture, the Guarantor hereby unconditionally
guarantees to each Holder of a Security authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, jointly and
severally (subject to Section 9 hereof), on a senior subordinated basis
the due and punctual payment of the principal of, premium, if any, and interest
on the Securities, whether at maturity, by acceleration or otherwise, the due
and punctual payment of interest on the overdue principal, premium and interest,
if any, on the Securities, and the due and punctual performance of all other
obligations of the Issuers to the Holders or the Trustee, all in accordance
with the terms set forth in Article Eleven of the Indenture. The


 





















 


obligations of the Guarantor to the Holders of Securities and to the
Trustee pursuant to its Guarantee of the Securities, this Supplemental
Indenture and the Indenture are expressly set forth in the Indenture, including
Article Eleven thereof, and are expressly subordinated and subject in
right of payment to the prior payment in full of all Guarantor Senior Debt, to
the extent and in the manner provided, in Article Twelve of the Indenture,
which Articles Eleven and Twelve and all provisions of the Indenture relating
to “Guarantors” shall be deemed incorporated herein by reference and shall be
applicable to the Guarantor as if set forth herein in full.  If any provision of the Indenture relating to
“Guarantors” is inconsistent with any provision herein, the provision of the
Indenture shall control.


 


Section 4.                                            Guaranty Unconditional.  The Guarantor hereby agrees that this is a
guarantee of payment and not of collection and that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or enforceability
of the Securities or the Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder of the Securities with respect to any
provisions of the Indenture or the Securities, the recovery of any judgment
against an Issuer, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor.


 


Section 5.                                            Discharge; Reinstatement.  If any Holder or the Trustee is required by
any court or otherwise to return to an Issuer or any custodian, trustee,
liquidator or other similar official acting in relation to such Issuer, any
amount paid by an Issuer to the Trustee or such Holder, the Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.


 


Section 6.                                            Waiver by the Guarantor.  The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of an Issuer, any right to require a proceeding first
against the Issuers, protest, notice and all demands whatsoever and covenants
that its Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities, the Indenture and the Guarantee.


 


Section 7.                                            Subrogation.  The Guarantor hereby agrees that any claim
against an Issuer that arises from the payment, performance or enforcement of the
Guarantor’s obligations under its Guarantee or the Indenture, including,
without limitation, any right of subrogation, shall be subject and subordinate
to, and no payment with respect to any such claim of the Guarantor shall be
made before, the payment in full in cash of all outstanding Securities in
accordance with the provisions provided therefor in the Indenture.


 


Section 8.                                            Stay of Acceleration.  The Guarantor further agrees that, as between
itself, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six of the Indenture for the purpose of its Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Six
of the Indenture, such obligations


 


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(whether or not due and payable) shall forth
become due and payable by the Guarantor for the purpose of its Guarantee.


 


Section 9.                                            Limitation on Amount of Guaranty.  The Guarantor, and by its acceptance hereof
each Holder and the Trustee, hereby confirms that it is the intention of all
such parties that the guarantee by the Guarantor pursuant to its Guarantee not
constitute a fraudulent transfer or conveyance for purposes of Title 11 of the
United States Code, as amended, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar U.S.  Federal or state or other
applicable law.  To effectuate the
foregoing intention, the Holders and the Guarantor hereby irrevocably agree
that the obligations of the Guarantor under its Guarantee shall be limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of the Guarantor result in the obligations of the Guarantor
under its Guarantee not constituting such fraudulent transfer or conveyance.


 


Section 10.                                      Execution and Delivery of Guaranty.  To further evidence its Guarantee to the
Holders, the Guarantor hereby agrees to execute a Guarantee in substantially
the form set forth in Exhibit A to the Indenture to be endorsed on each
Security ordered to be authenticated and delivered by the Trustee.  The Guarantor hereby agrees that its
Guarantee set forth herein and in Section 11.01 of the Indenture shall
remain in full force and effect notwithstanding any failure to endorse on each
Security a notation of its Guarantee.


 


Section 11.                                      Release of Guaranty.  The Guarantee of the Securities of the
Guarantor will be released and the Trustee shall deliver an appropriate
instrument evidencing such release to the extent provided in, and upon
compliance with the conditions set forth in, Section 9.01 or Section 11.03
of the Indenture.


 


Section 12.                                      Governing Law.  THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THIS SUPPLEMENTAL INDENTURE AND THE SECURITIES WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.


 


Section 13.                                      No Personal Liability of Directors, Officers, Employees and Stockholders.  A director, officer, employee, incorporator
or stockholder, as such, of any of the Issuers or the Guarantor shall not have
any liability for any obligations of any of the Issuers or the Guarantor under
the Securities, the Guarantee, this Supplemental Indenture or the Indenture or
for any claim based on in respect of or by reason of such obligations or their
creation.  Each Securityholder by
accepting a Security waives and releases all such liability.  The waiver and release are part of the consideration
for issuance of the Securities and the Guarantee.  The waiver may not be effective to waive
liabilities under federal securities laws.


 


Section 14.                                      Counterparts.  This Supplemental Indenture may be signed in
various counterparts which together will constitute
one and the same instrument.


 


Section 15.                                      Indenture.  This Supplemental Indenture is an amendment
supplemental to the Indenture, and the Indenture and this Supplemental
Indenture will henceforth be read together.


 


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Section 16.                                      Recitals.  The recitals contained herein shall be taken
as the statements of the Issuers and the Guarantor, and the Trustee assumes no
responsibility for their correctness and makes no representations as to the
validity or sufficiency of this Supplemental Indenture.


 


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IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed as of the date first above written.


 


	
   

  	
  EURAMAX
  INTERNATIONAL, INC., as Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  R. Scott Vansant

  	
   

  
	
   

  	
   

  	
  Name:

  	
  R. Scott Vansant

  
	
   

  	
   

  	
  Title:

  	
  VP, CFO and
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EURAMAX
  INTERNATIONAL HOLDINGS

  B.V., as Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  R. Dresen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  R. Dresen

  
	
   

  	
   

  	
  Title:

  	
  MD

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUTTER
  ACQUISITION, INC.

  
	
   

  	
  as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  R. Scott Vansant

  	
   

  
	
   

  	
   

  	
  Name:

  	
  R. Scott Vansant

  
	
   

  	
   

  	
  Title:

  	
  VP, CFO and
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE
  BANK, N.A., as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  Rosa Ciaccia

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Rosa Ciaccia

  
	
   

  	
   

  	
  Title:

  	
  Trust Officer

  



 


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