Exhibit 10.1




 





 


STOCK PURCHASE AGREEMENT


 


by and among


 


CITIGROUP VENTURE CAPITAL EQUITY

PARTNERS, L.P.


 


CVC EXECUTIVE FUND LLC


 


CVC/SSB EMPLOYEE FUND, L.P.


 


EURAMAX INTERNATIONAL, INC.


 


and


 


THE STOCKHOLDERS OF

EURAMAX INTERNATIONAL, INC.

NAMED HEREIN




 





 


Dated April 15, 2003


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE
  I THE TRANSACTION

  
	
   

  
	
  1.1.

  	
  Purchase of Company Stock

  
	
  1.2.

  	
  Purchase Price Payment

  
	
  1.3.

  	
  Tag-Sellers

  
	
  1.4.

  	
  Stockholders’
  Representative

  
	
   

  	
   

  
	
  ARTICLE
  II CLOSING

  
	
   

  
	
  2.1.

  	
  Closing
  Date

  
	
  2.2.

  	
  Closing Deliveries

  
	
  2.3.

  	
  Default by any Stockholder

  
	
   

  	
   

  
	
  ARTICLE III REPRESENTATIONS AND WARRANTIES
  OF THE COMPANY AND STOCKHOLDERS REGARDING THE COMPANY

  
	
   

  
	
  3.1.

  	
  Organization

  
	
  3.2.

  	
  Authority

  
	
  3.3.

  	
  No Conflict

  
	
  3.4.

  	
  Consents

  
	
  3.5.

  	
  Capitalization

  
	
  3.6.

  	
  Brokers

  
	
   

  	
   

  
	
  ARTICLE
  IV REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS

  
	
   

  
	
  4.1.

  	
  Ownership
  of Stock

  
	
  4.2.

  	
  Authority; Effect of
  Agreement

  
	
  4.3.

  	
  No Conflict

  
	
  4.4.

  	
  Brokers

  
	
  4.5.

  	
  Transactions with
  Related Parties

  



 


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  ARTICLE
  V REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS

  
	
   

  
	
  5.1.

  	
  SEC Documents;
  Undisclosed Liabilities

  
	
  5.2.

  	
  Absence of Certain
  Changes or Events

  
	
  5.3.

  	
  Contracts

  
	
  5.4.

  	
  Litigation

  
	
  5.5.

  	
  Compliance with Laws

  
	
  5.6.

  	
  Environmental Matters

  
	
  5.7.

  	
  Taxes

  
	
  5.8.

  	
  Employee Benefit Matters

  
	
   

  	
   

  
	
  ARTICLE
  VI REPRESENTATIONS AND WARRANTIES OF BUYER

  
	
   

  
	
  6.1.

  	
  Organization

  
	
  6.2.

  	
  Power
  and Authority

  
	
  6.3.

  	
  No Conflict

  
	
  6.4.

  	
  Consents

  
	
  6.5.

  	
  Brokers

  
	
  6.6.

  	
  Purchase for Investment

  
	
  6.7.

  	
  Sufficient
  Funds

  
	
   

  	
   

  
	
  ARTICLE VII COVENANTS

  
	
   

  
	
  7.1.

  	
  Cooperation
  by the Stockholders and the Company

  
	
  7.2.

  	
  Conduct of the
  Business Pending Closing

  
	
  7.3.

  	
  Access

  
	
  7.4.

  	
  Directors; Resignations

  
	
  7.5.

  	
  Fulfillment of Agreements

  



 


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  7.6.

  	
  Insurance

  
	
  7.7.

  	
  Confidentiality

  
	
  7.8.

  	
  Hart-Scott-Rodino Act

  
	
  7.9.

  	
  Further
  Assurances

  
	
  7.10.

  	
  Assignment of
  Registration Rights

  
	
  7.11.

  	
  Exclusivity

  
	
  7.12.

  	
  Credit
  Agreement

  
	
  7.13.

  	
  Restrictive Covenants

  
	
  7.14.

  	
  No Parachute Payments

  
	
  7.15.

  	
  D&O
  Indemnification

  
	
   

  	
   

  
	
  ARTICLE VIII CONDITIONS TO BUYER’S
  OBLIGATIONS

  
	
   

  
	
  8.1.

  	
  Representations
  and Warranties True and Correct

  
	
  8.2.

  	
  Covenants and
  Agreements Performed

  
	
  8.3.

  	
  Stockholders’
  and Company Closing Certificates

  
	
  8.4.

  	
  No Prohibition or
  Proceedings

  
	
  8.5.

  	
  Consents

  
	
  8.6.

  	
  Opinions

  
	
  8.7.

  	
  Shareholder Agreement

  
	
  8.8.

  	
  Tag-Along
  Waivers

  
	
  8.9.

  	
  FIRPTA Certificate

  
	
  8.10.

  	
  Material Adverse Effect

  
	
  8.11.

  	
  Certain Shareholder
  Approvals

  



 


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  ARTICLE
  IX CONDITIONS TO STOCKHOLDERS’ OBLIGATIONS

  
	
   

  
	
  9.1.

  	
  Representations
  and Warranties True and Correct

  
	
  9.2.

  	
  Covenants and
  Agreements Performed

  
	
  9.3.

  	
  Buyer Closing Certificate

  
	
  9.4.

  	
  No Prohibition or
  Proceedings

  
	
  9.5.

  	
  Governmental
  Consents and Other Approvals

  
	
  9.6.

  	
  Ratification by the Fund

  
	
   

  	
   

  
	
  ARTICLE
  X TERMINATION PRIOR TO CLOSING

  
	
   

  
	
  10.1.

  	
  Termination

  
	
  10.2.

  	
  Effect on Obligations

  
	
   

  	
   

  
	
  ARTICLE
  XI SURVIVAL AND INDEMNIFICATION

  
	
   

  
	
  11.1.

  	
  Survival

  
	
  11.2.

  	
  General Indemnification

  
	
  11.3.

  	
  Insurance

  
	
  11.4.

  	
  Sole Remedy

  
	
  11.5.

  	
  Tax
  Treatment

  
	
   

  	
   

  
	
  ARTICLE XII MISCELLANEOUS

  
	
   

  
	
  12.1.

  	
  Interpretive Provisions

  
	
  12.2.

  	
  Entire
  Agreement

  
	
  12.3.

  	
  Successors and Assigns

  
	
  12.4.

  	
  Headings

  
	
  12.5.

  	
  Modification and Waiver

  
	
  12.6.

  	
  Expenses

  



 


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  12.7.

  	
  Notices

  
	
  12.8.

  	
  Governing Law;
  Consent to Jurisdiction

  
	
  12.9.

  	
  Public Announcements

  
	
  12.10.

  	
  No Third Party
  Beneficiaries

  
	
  12.11.

  	
  Counterparts

  
	
  12.12.

  	
  Existing Shareholders
  Agreement

  
	
   

  	
   

  
	
  ARTICLE XIII CERTAIN DEFINITIONS

  



 


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  EXHIBITS

  
	
   

  
	
  1.1

  	
  Company Stock To Be Sold To Buyer

  
	
  1.3

  	
  Sale Notice

  
	
  8.6.1

  	
  Form of Counsel Opinion for CVC Europe

  
	
  8.6.2

  	
  Form of Counsel Opinion for Paribas

  



 


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EXHIBIT 8.6.1


 


Citigroup Venture Capital
Partners, L.P.

CVC Executive Fund LLC

CVC/SSB Employee Fund, L.P.


                 
     , 2003


 


STOCK
PURCHASE AGREEMENT


 


THIS STOCK PURCHASE
AGREEMENT (the “Agreement”) is made and entered into as of April 15,
2003, by and among Citigroup Venture Capital Equity Partners, L.P., a Delaware
limited partnership (the “Fund”), CVC EXECUTIVE FUND LLC, a Delaware
limited liability company (the “Executive Fund”), and CVC/SSB EMPLOYEE
FUND, L.P., a Delaware limited partnership (“CVC/SSB” and together with
the Fund and the Executive Fund, the “Buyers” or “Buyer”),
Euramax International, Inc., a Delaware corporation (the “Company”), and
CVC European Equity Partners, L.P., a Delaware limited partnership (“CVC
Europe”), CVC European Equity Partners (Jersey), L.P., a Jersey limited
partnership (“CVC EJ”), BNP Paribas (f/k/a Banque Paribas) (“Paribas”
and together with CVC Europe and CVC EJ, the “Investors”), and any other
stockholders of the Company who join this Agreement as a Tag Seller (as defined
below) in accordance with the terms of this Agreement prior to Closing (the
Investors and any Tag Sellers are hereinafter referred to individually as a “Stockholder”
and collectively as the “Stockholders”).


 


RECITALS


 


WHEREAS, the Company has
issued and outstanding as of the date hereof 437,695.64 shares of Class A
voting Common Stock, par value $1.00 per share (the “Class A Common”)
and 44,346.80 shares of Class B restricted voting Common Stock, par value $1.00
per share (the “Class B Common” and together with the Class A Common,
the “Company Stock”) and no other capital stock.


 


WHEREAS, Buyer desires to
purchase from each Investor and each of the Investors desires to sell to Buyer
shares of Company Stock, on the terms and subject to the conditions set forth
in this Agreement.


 


WHEREAS, pursuant to the
terms of a Stockholders Agreement, dated December 8, 1999, by and among the
Company, the Investors, Citicorp Venture Capital, Ltd. and the other
stockholders of the Company named therein (the “Shareholders Agreement”),
all of the Other Stockholders (as defined in Section 3(c) the Shareholders
Agreement) have the right to participate on a pro-rata basis (on the terms set
forth in Section 3(c) to the Shareholders Agreement) in the sale of shares of
Company Stock by the Investors contemplated hereby.


 


WHEREAS, subject to
Section 8.8 hereof, Buyer desires to purchase from each Other Stockholder any
shares of Company Stock such Other Stockholder validly elects to sell pursuant
to Section 3(c) of the Shareholders Agreement, on the terms and subject to the


 


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conditions set forth in this
Agreement.


 


AGREEMENTS


 


NOW THEREFORE, in
consideration of the representations, warranties, covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, and upon the terms and subject to the
conditions set forth herein, the parties hereto, intending to be legally bound,
agree as follows:


 


ARTICLE I

THE TRANSACTION


 


1.1.          Purchase
of Company Stock.  At the
Closing referred to in Section 2.1 below, each Stockholder will sell and assign
to Buyer, and Buyer will purchase from such Stockholder, the shares of Company
Stock set forth opposite such Stockholder’s name on Exhibit 1.1 attached
hereto, free and clear of all Encumbrances (as defined in Section 4.1 hereof)
other than Encumbrances arising under federal or state securities laws or as a
result of Buyer’s ownership of such Company Stock (“Permitted Encumbrances”).  The shares of Company Stock to be purchased
hereunder will be allocated for purchase among each Buyer by the Fund prior to
Closing.


 


1.2.          Purchase
Price Payment.


 


(a)           Purchase Price.  The purchase price for each share of Class A
Common and Class B Common shall consist of cash in an amount equal to Four
Hundred Dollars (US$400.00) per share (the “Per Share Purchase Price”).


 


(b)           Payments.  At the Closing, Buyer shall pay to each
Stockholder the product of the Per Share Purchase Price and the number of
shares of Company Stock set forth opposite such Stockholder’s name on Exhibit
1.1 attached hereto (the “Purchase Price Payment”), by wire transfer
of immediately available funds to the United States bank account that has been
designated for each such Stockholder by the Stockholders’ Representative (as
defined in Section 1.4 hereof) to Buyer at least three days prior to the
Closing.


 


1.3.          Tag-Sellers.  On the date hereof, the Investors shall
deliver to the Company a Sale Notice contemplated by Section 3(c) of the
Shareholders Agreement in the form attached as Exhibit 1.3 attached
hereto (the “Sale Notice”).  The
Company shall on the date hereof notify the Other Stockholders of the Sale
Notice, and the Other Stockholders shall have 7 days from the date hereof (the
“Tag Date”) to elect to participate in the purchase and sale
contemplated by this Agreement as a “Tag Seller”.  Each Other Stockholder who so elects to be a
Tag Seller on or


 


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prior to the Tag Date shall
execute a written joinder to this Agreement (in the form attached to the Sale
Notice) on the Tag Date, agreeing to be bound by all of the terms and
conditions of this Agreement as a Tag Seller and Stockholder hereunder.  Exhibit 1.1 shall be amended on
the Tag Date to reflect the addition of each Tag Seller and the number of
shares of Company Stock to be sold by each such Tag Seller (determined in
accordance with the terms of the Sale Notice).


 


1.4.          Stockholders’
Representative  .  Each Stockholder
hereby irrevocably appoints Ronald A. Collins (the “Stockholders’
Representative”) as such Stockholder’s representative, attorney-in-fact and
agent, with full power of substitution to act in the name, place and stead of
such Stockholder with respect to the transfer of such Stockholder’s shares of
Company Stock to Buyer in accordance with the terms and provisions of this
Agreement and to act on behalf of such Stockholder in any litigation or
arbitration involving this Agreement and to do or refrain from doing all such
further acts and things, and to execute all such documents, as such
Stockholders’ Representative shall deem necessary or appropriate in connection
with any of the transactions contemplated under this Agreement, including,
without limitation, the power:


 


(a)           to take all action necessary or
desirable in connection with the waiver of any condition to the obligations of
the Stockholders to consummate the transactions contemplated by this Agreement;


 


(b)           to receive, hold, and deliver to Buyer
the certificates evidencing shares of Company Stock accompanied by executed
stock powers and any other documents relating thereto on behalf of such
Stockholder;


 


(c)           to execute and deliver all ancillary
agreements, certificates, statements, notices, approvals, extensions, waivers,
undertakings, amendments and other documents required or permitted to be given
in connection with the consummation of the transactions contemplated by this
Agreement;


 


(d)           to receive funds and give receipt for
funds, including in respect of the Per Share Purchase Price, to distribute to
the Stockholders their Per Share Purchase Price, and any adjustment thereto;


 


(e)           to terminate this Agreement if the
Stockholders are entitled to do so;


 


(f)            to institute, defend, compromise or settle
any indemnification claims pursuant to Article XI of this Agreement (excluding
indemnification claims under Section 11.2(b) hereof (relating to
representations and warranties set forth in Article IV hereof) or
Section 7.14 hereof);


 


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(g)           to give and receive all notices and
communications to be given or received under this Agreement and to receive
service of process in connection with any claims under this Agreement,
including service of process in connection with arbitration; and


 


(h)           to take all actions which under this
Agreement may be taken by the Stockholders’ Representative and to do or refrain
from doing any further act or deed on behalf of such Stockholder which
Stockholders’ Representative deems necessary or appropriate in his sole
discretion relating to the subject matter of this Agreement as fully and
completely as such Stockholder could do if personally present;


 


provided, that the Stockholders’
Representative shall (i) take reasonable steps to keep the Stockholders
informed; and (ii) exercise the foregoing powers in a reasonable and
nondiscriminatory manner taking into account the interests of all Stockholders
and treating all Stockholders equally on a pro-rata basis.


 


The death or incapacity
of any Stockholder shall not terminate the agency and power of attorney granted
hereby to the Stockholders’ Representative. 
The appointment of Stockholders’ Representative shall be deemed coupled
with an interest and shall be irrevocable and, notwithstanding the proviso at
the end of the foregoing paragraph, Buyer and any other person may conclusively
and absolutely rely, without inquiry, upon any action of Stockholders’
Representative, as the action of Stockholders in all matters referred to
herein.  All actions, decisions and
instructions of Stockholders’ Representative shall be conclusive and binding
upon all of the Stockholders and no Stockholder shall have any cause of action
against Buyer or Stockholders’ Representative for any action taken or not taken
by Stockholders’ Representative in his role as such, except for causes of
action against the Stockholders’ Representative with respect to any action or
omission taken or made fraudulently or in bad faith with respect to such
Stockholder.


 


All payments, damages,
costs, fees and expenses incurred by the Stockholders’ Representative in
connection with any dispute with Buyer under this Agreement shall be paid by
the Stockholders in proportion to their respective percentage ownership of the
shares of Company Stock being sold hereunder and may be deducted by
Stockholders’ Representative from any amounts otherwise payable to any
Stockholder hereunder.


 


ARTICLE II

CLOSING


 


2.1.          Closing Date.  The closing of the transactions contemplated
hereby (the “Closing”) shall take place at the offices of Dechert LLP in
New York, New York at 9:30 a.m.


 


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EST on (i) the 30th
day following the date hereof (or, if such day is not a business day, the
immediately succeeding business day), provided that (A) in no event
shall the Closing take place prior to the second business day following the
satisfaction of all of the conditions set forth in Articles VIII and IX, and
(B) in the event the Termination Date is extended to June 15, 2003 pursuant to
Section 10.1(b), the Closing shall take place within three (3) Business Days of
the satisfaction of the conditions set forth in Sections 8.5 and 9.5, or (ii)
at such other place, time or date as Buyer and the Stockholders’ Representative
may agree in writing (such time and date being referred to herein as the “Closing
Date”).  For financial accounting
and tax purposes, to the extent permitted by Law, the Closing shall be deemed
to have become effective as of 11:59 p.m. on the Closing Date.


 


2.2.          Closing
Deliveries.


 


(a)           Deliveries by Buyer to the
Stockholders.  At the Closing, Buyer
shall deliver or cause to be delivered the following:


 


(i)            the Purchase Price Payments,
delivered to the Stockholders in accordance with Section 1.2(b);


 


(ii)           the Buyer Closing Certificate (as
such term is defined in Section 9.3), delivered to the Stockholders’
Representative; and


 


(iii)          the Ancillary Agreements (as
hereinafter defined) to which Buyer is a party, duly executed by Buyer,
delivered to the Company.


 


(b)           Deliveries by the Stockholders’
Representative.  At the Closing, the
Stockholders’ Representative shall deliver or cause to be delivered the
following to Buyer:


 


(i)            the shares of Company Stock of each
Stockholder (or in lieu thereof an affidavit of loss and indemnity in a form
reasonably acceptable to the Company and Buyer), duly endorsed for transfer by
such Stockholder or accompanied by duly executed stock transfer powers of such
Stockholder, free and clear of all Encumbrances other than Permitted Encumbrances.


 


(ii)           the Stockholder Closing Certificate
and the Company Closing Certificate (as such terms are defined in Section 8.3);


 


(iii)          the Ancillary Agreements to which any
Stockholder or the Company is a party, duly executed by such Stockholder or the
Company, as the case may be;


 


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(iv)          the legal opinions specified in
Section 8.6 hereof;


 


(v)           the certificate required pursuant to
Section 8.9 hereof; and


 


(vi)          such other agreements, certificates
and documents as may be reasonably requested by Buyer.


 


2.3.          Default
by any Stockholder.  If the
Stockholders’ Representative or any Stockholder fails to deliver to Buyer at
the Closing any of the Company Stock (including by way of delivery of any
affidavit of loss and indemnity in a form reasonably acceptable to the Company
and Buyer) to be sold by such Stockholder hereunder, such failure shall not
relieve any other Stockholder of any obligation hereunder, and if any such
failure is by an Investor, Buyer may, at Buyer’s option (a) acquire the
remaining shares of Company Stock contemplated to be acquired by Buyer
hereunder; or (b) refuse to make such acquisition and thereby terminate all of
its obligations hereunder, in either case without prejudice to Buyer’s rights
against such defaulting Stockholders.


 


ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND
 STOCKHOLDERS REGARDING THE COMPANY


 


Prior to the Closing the
Company represents and warrants to Buyer that, and from and after the Closing
each Stockholder severally represents and warrants to Buyer that to the
Knowledge of that Stockholder (other than with respect to Section 3.5, which
representation and warranty is made without qualification by Knowledge):


 


3.1.          Organization.  The Company is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware,
and has all requisite corporate power and authority to carry on its business as
it now is being conducted.  The Company
is duly qualified to do business and is in good standing as a foreign
corporation in all jurisdictions where the nature of the property owned or
leased by it or the nature of the business conducted by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect.


 


3.2.          Authority.  The execution, delivery and performance by
the Company of this Agreement and the Ancillary Agreements to which the Company
is a party and the consummation by the Company of the transactions contemplated
hereby and thereby have been duly authorized by all necessary corporate action
on the part of the Company.  This
Agreement has been, and each Ancillary Agreement to which the Company is a
party will be, duly and validly executed and delivered by the Company, to the
extent a party thereto, and constitutes, and


 


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will constitute, the valid and
binding obligation of each of the Company, enforceable against the Company in
accordance with its respective terms.


 


3.3.          No Conflict.  The execution, delivery and performance by
the Company and each Stockholder of this Agreement and the Ancillary Agreement
to which the Company or the Stockholders are parties thereto, and the
consummation by the Company and each Stockholder of the transactions
contemplated hereby and thereby does not and will not, with or without the
giving of notice or the lapse of time, or both, (w) violate any provision
of law, rule, or regulation to which the Company or any Subsidiary is subject,
(x) violate any order, judgment, or decree applicable to the Company or
any Subsidiary, (y) violate any provision of the certificate of
incorporation, bylaws or other corporate governance or organizational documents
of the Company or any Subsidiary, or (z) except as set forth on Schedule 3.3
hereof, violate or result in a breach of or constitute a default (or an event
which might, with the passage of time or the giving of notice, or both,
constitute a default) under, or require the consent of any third party under,
or result in or permit the termination or amendment of any provision of, or
result in or permit the acceleration of the maturity or cancellation of
performance of any obligation under, or result in the creation or imposition of
any Encumbrance of any nature whatsoever upon any assets or property or give to
others any interests or rights therein under, any indenture, deed of trust,
mortgage, loan or credit agreement, license, permit, contract, lease, or other
agreement, instrument or commitment to which the Company or any Subsidiary is a
party or by which any of them may be bound or affected, except for any such
violations that in the aggregate would not materially hinder or impair the
consummation of the transactions contemplated hereby and would not have a
Material Adverse Effect.


 


3.4.          Consents.  Except as set forth on Schedule 3.4
hereof, no consent, approval, or authorization of, or exemption by, or filing
with, any governmental authority or third party is required to be obtained or
made by the Company or any Subsidiary in connection with the execution,
delivery, and performance by any Stockholder or the Company of this Agreement,
or any Ancillary Agreement to which any such Stockholder or the Company is a
party, or the taking by the Company of any other action contemplated hereby or
thereby or the continuation after the Closing by the Company or any Subsidiary
of the businesses conducted prior to the Closing.


 


3.5.          Capitalization.  The authorized and outstanding capital stock
of the Company as of the date hereof is set forth on Schedule 3.5
hereof.  The Company Stock represents
all of the issued and outstanding capital stock of the Company, and all of the
outstanding Company Stock is duly authorized, validly issued, fully paid, and non-assessable,
was not issued in violation of the terms of any agreement or other
understanding binding upon any Stockholder or the Company, and was issued in
compliance with all applicable federal and state securities or “blue-sky” laws
and regulations.  Except as set forth on
Schedule 3.5 hereof, there are outstanding no


 


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securities convertible into,
exchangeable for or carrying the right to acquire equity securities of the
Company, or subscriptions, warrants, options, rights (including, without
limitation, preemptive rights), stock appreciation rights, phantom stock
interests, or other arrangements or commitments obligating the Company to issue
or dispose of any of its respective equity securities or any ownership interest
therein (“Equity Rights”).  The
consummation of the transactions contemplated hereby will not cause any
Encumbrances to be created or suffered on the Company Stock, other than
Encumbrances created by Buyer or Encumbrances resulting from the Securities
Holders Agreement referenced in Section 8.7 hereof or the Company’s 2003 Equity
Compensation Plan (or grant agreements thereunder).  Schedule 3.5 sets forth as of the date hereof, with
respect to any Equity Rights, the total number of Equity Rights (and any shares
of capital stock issuable pursuant to such Equity Rights), the number of vested
and unvested Equity Rights, the number of Equity Rights that will accelerate
under the terms of the applicable grant or award, and the exercise prices or
grant prices of the for the Equity Rights. 
Since the date hereof, the Company has not awarded or granted any Equity
Rights.


 


3.6.          Brokers.  Neither the Company nor any Subsidiary has
retained any broker, finder or investment banking firm to act on their behalf
in connection with the transactions contemplated by this Agreement and, to the
Company’s knowledge, no other person is entitled to receive any brokerage
commission, finder’s fee or other similar compensation in connection with the
transactions contemplated by this Agreement, except for CIBC World Markets to
the extent provided in the Engagement Letter between CIBC World Markets and the
Company dated June 4, 2002 (the “Engagement Letter”).


 


ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS


 


Each of the Stockholders
severally, but not jointly, hereby represents and warrants to the Buyer as to
itself as follows:


 


4.1.          Ownership
of Stock.  Such Stockholder is
the beneficial and record owner of the Company Stock set forth opposite such
Stockholder’s name on Exhibit 1.1 attached hereto, free and clear of all
liens, security interests, security agreements, conditional sale or other title
retention agreements, leases, pledges, equities, proxies, claims, charges,
mortgages, rights of first refusal, preemptive rights, restrictions,
encumbrances, easements, covenants, assessments, attachments, licenses, options
or title defects of any kind whatsoever (“Encumbrances”), except for any
Encumbrances imposed by the Shareholders Agreement or arising under federal or
state securities laws.  Such Stockholder
has all requisite legal right, power and authority to transfer such shares of
Company Stock to Buyer.  Upon
consummation of the purchases and exchanges contemplated hereby, Buyer will
acquire from such Stockholder good and marketable title to


 


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such shares of Company Stock,
free and clear of any Encumbrances other than Permitted Encumbrances.


 


4.2.          Authority;
Effect of Agreement.  The
execution, delivery and performance by such Stockholder of this Agreement and
the Ancillary Agreements to which such Stockholder is a party and the
consummation by such Stockholder of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of such
Stockholder.  If such Stockholder is a
limited partnership or corporate body, such Stockholder is duly created and
validly existing under the laws of the jurisdiction of its creation and has all
requisite limited partnership or corporate power and authority, as applicable,
to carry on its business as it is now being conducted, to execute, deliver and
perform this Agreement and the Ancillary Agreements to which it is a party, and
to consummate the transactions contemplated hereby and thereby.   This
Agreement has been, and each Ancillary Agreement to which such Stockholder is a
party will be, duly and validly executed and delivered by such Stockholder and
constitutes, and will constitute, the valid and binding obligation of each of
such Stockholder, enforceable against such Stockholder in accordance with its
respective terms.


 


4.3.          No Conflict.  The execution, delivery and performance by
such Stockholder of this Agreement and any Ancillary Agreement to which such
Stockholder is party, and the consummation by such Stockholder of the
transactions contemplated hereby and thereby does not and will not, with or
without the giving of notice or the lapse of time, or both, (w) violate
any provision of law, rule, or regulation to which such Stockholder is subject,
(x) violate any order, judgment, or decree applicable to such Stockholder,
(y) violate any provision of the organizational documents of such
Stockholder (if such Stockholder is not an individual), or (z) violate or
result in a breach of or constitute a default (or an event which might, with
the passage of time or the giving of notice, or both, constitute a default)
under, or require the consent of any third party under, or result in or permit
the termination or amendment of any provision of, or result in or permit the
acceleration of the maturity or cancellation of performance of any obligation
under, or result in the creation or imposition of any Encumbrance of any nature
whatsoever upon any assets or property or give to others any interests or rights
therein under any indenture, deed of trust, mortgage, loan or credit agreement,
license, permit, contract, lease, or other agreement, instrument or commitment
to which such Stockholder is a party or by which such Stockholder may be bound
or affected, except for any such violations that in the aggregate would not
materially hinder or impair the ability of such Stockholder to perform its
obligations hereunder or the consummation of the transactions contemplated
hereby.


 


4.4.          Brokers.  Such Stockholder has not retained any
broker, finder or investment banking firm to act on its behalf in connection
with the transactions contemplated by this Agreement and, to such Stockholder’s
Knowledge, no other person is entitled to receive any


 


9

















 


brokerage commission, finder’s
fee or other similar compensation in connection with the transactions
contemplated by this Agreement, except for CIBC World Markets to the extent
provided in the Engagement Letter.


 


4.5.          Transactions with Related Parties.  Except as described on Schedule 4.5
hereof or as described in the SEC Documents (as defined in Section 5.2 hereof),
and except for the Shareholders Agreement and Registration Rights Agreement
referenced therein, since January 1, 2000, such Stockholder does not have and
has not had:


 


(a)           any contractual or other claims,
express or implied, or of any kind whatsoever against the Company or any
Subsidiary;


 


(b)           any interest in any property or
assets used by the Company or any Subsidiary; or


 


(c)           engaged in any other transaction with
the Company or any Subsidiary (other than at-will employment relationships and
any cash dividends and distributions in respect of shares of Company Stock).


 


Except as described on Schedule 4.5 hereof, neither such
Stockholder nor any of its affiliates (other than the Company or another
Stockholder) has outstanding any loan, guarantee or other obligation of
borrowed money made to or from the Company or any Subsidiary.


 


The forgoing provisions of this Section 4.5 shall not be construed to
be violated by the existing banking relationship between Paribas and its
affiliates with the Company and its Subsidiaries.


 


ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS


 


Each Stockholder
severally represents and warrants to the Buyer that, to the Knowledge of that
Stockholder:


 


5.1.          SEC Documents; Undisclosed
Liabilities.  The Company has
filed all material reports, schedules, forms and registration statements with
the Securities and Exchange Commission (the “SEC”) required to be filed
pursuant to the Securities Act of 1933, as amended (the “Securities Act”),
or the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and the rules and regulations of the SEC promulgated thereunder since January
1, 1999 (collectively, and in each case including all exhibits and schedules
thereto and documents incorporated by reference therein, the “SEC Documents”).  As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Securities Act or the


 


10

















 


Exchange Act, as the case may
be, and the rules and regulations of the SEC promulgated thereunder applicable
to such SEC Documents, and none of the SEC Documents (including any and all
financial statements included therein) as of such dates contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.  The consolidated financial statements of the
Company included in the SEC Documents (the “SEC Financial Statements”)
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with GAAP (except as may be indicated
therein or in the notes thereto and except, in the case of unaudited
consolidated quarterly statements, as permitted by Form 10-Q of the SEC)
applied on a consistent basis during the periods involved and fairly present in
all material respects the consolidated financial position of the Company and
its consolidated Subsidiaries as of the respective dates thereof and the
consolidated results of their operations and cash flows for the respective
periods then ended (subject, in the case of unaudited quarterly statements, to
normal year-end audit adjustments and the absence of footnotes).  Except
as set forth on Schedule 5.1 hereof, since December 27, 2002
until the date hereof, neither the Company nor any of its Subsidiaries has
incurred any liabilities or obligations of any nature (whether accrued,
absolute, contingent or otherwise) except (i) as and to the extent set forth on
the audited balance sheet of the Company and its Subsidiaries as of December
27, 2002 (including the notes thereto), (ii) as incurred in connection with the
transactions contemplated by this Agreement, (iii) as incurred after December
27, 2002 in the ordinary course of business and consistent with past practice,
(iv) to the extent specifically described in the SEC Documents filed since
December 27, 2002 but on or prior to the date hereof (the “Recent SEC
Documents”), or (v) as would not, individually or in the aggregate, have a
Material Adverse Effect.


 


5.2.          Absence of Certain Changes or Events.  Except as disclosed in the SEC Documents
filed or press releases of the Company issued prior to the date hereof, or
except as set forth on Schedule 5.2 hereof, the Company and the
Subsidiaries have conducted the Company’s and its Subsidiaries’ businesses only
in the ordinary course consistent with past practice and there has been no
Material Adverse Effect.  Without limiting
the foregoing, except as set forth on Schedule 5.2 or as reflected in
the Recent SEC Documents, since December 27, 2002, neither the Company nor any
Subsidiary has (a) purchased or redeemed any shares of its stock (including,
without limitation, the Company Stock), or granted or issued any option,
warrant or other right to purchase or acquire any such shares, (b) suffered any
change or received any threat of any change in any of its relations with, or
any loss or threat of loss of, any of the suppliers, clients, distributors,
customers or employees that would, individually or in the aggregate, have a
Material Adverse Effect, including any such loss or change which may result
from the transactions contemplated by this Agreement, (c) changed any method of
keeping of their respective books of


 


11

















 


account or accounting
principles (other than as required by law), (d) entered into any transaction,
agreement, event or arrangement outside the ordinary course of the conduct of
the businesses of the Company or any Subsidiary, (e) changed or modified in any
respect material to the Company its existing credit, collection and payment
policies, procedures and practices with respect to accounts receivable and
accounts payable, respectively, including without limitation, acceleration of
collections of receivables, failure to make or delay in making collections of
receivables (whether or not past due), acceleration of payment of payables or
failure to pay or delay in payment of payables, (f) incurred any damage, destruction,
theft, loss or business interruption, whether covered by insurance or not, that
would have a Material Adverse Effect, or (g) made any declaration, payment or
setting aside for payment of any dividend or other distribution (whether in
cash, stock or property) with respect to any securities of the Company.


 


5.3.          Contracts.  Each outstanding Contract of the Company is
valid and binding, enforceable against the Company or any Subsidiary in
accordance with its terms, and is in full force and effect, except as may be
limited by applicable insolvency, bankruptcy, reorganization, moratorium, or
other similar laws affecting creditors’ rights generally and any applicable
equitable principles (whether considered in a proceeding at law or in equity).  The Company or any Subsidiary and each of
the other parties thereto have performed all obligations required to be
performed by them under, and are not in default under, any of such Contracts
and no event has occurred which, with notice or lapse of time, or both, would
constitute such a default, except for failures or occurrences which,
individually or in the aggregate, would not have a Material Adverse
Effect.  Neither the Company nor any
Subsidiary has received any written claim from any other party to any such Contract
that the Company or any Subsidiary has breached any obligations to be performed
by it thereunder, or is otherwise in default or delinquent in performance
thereunder, except for breaches, defaults or delinquencies which, individually
or in the aggregate, would not have a Material Adverse Effect.


 


5.4.          Litigation.  Except as set forth on Schedule 5.4
hereof, there is no action, claim, suit, review, proceeding or investigation in
any court or before any governmental agency or authority pending or threatened
against the Company or any Subsidiary which if adversely determined against the
Company or such Subsidiary would have a Material Adverse Effect.  Except as set forth in Schedule 5.4
hereof, neither the Company nor any Subsidiary is a party to, or bound by, any
outstanding orders, rulings, judgments, settlements, arbitration awards or
decrees (or agreements entered into or any administrative, judicial or
arbitration award with any governmental authority) with respect to or affecting
the properties, assets, personnel or business of the Company or any Subsidiary,
the enforcement of which or compliance with which would have a Material Adverse
Effect, or could reasonably be expected to affect the (i) validity of this
Agreement or its enforceability against any Stockholder or the Company, (ii)
consummation by any Stockholder or the Company of the transactions contemplated
by this Agreement, or (iii)


 


12

















 


compliance by any Stockholder
or the Company with the terms of this Agreement.


 


5.5.          Compliance
with Laws.  The Company and its
Subsidiaries have been and are in compliance with all applicable federal,
state, local or foreign laws, rules and regulations currently in effect, except
where the failure to comply therewith would not, individually or in the
aggregate, have a Material Adverse Effect. 
The Company and its Subsidiaries possess and are in compliance with all
governmental permits, registrations, certificates, licenses, authorizations,
easements, leases and variances (“Permits”) necessary for the conduct of
the Company’s and its Subsidiaries’ businesses as presently conducted, and will
continue to possess and be in compliance with such Permits immediately after
the Closing, and each of such Permits is and will be immediately after the
Closing in full force and effect in favor of the Company or a Subsidiary,
except where the failure to so possess, comply with or be in effect would not,
individually or in the aggregate, have a Material Adverse Effect.


 


5.6.          Environmental
Matters.  Except as disclosed on
Schedule 5.6 hereof or in the SEC Documents:


 


(a)           The Company and each Subsidiary has
conducted and is now conducting its operations in compliance with all
applicable foreign, federal, state and local environmental and employee
protection laws, rules, regulations, ordinances, the common law, judgments,
orders, consent agreements, work practices, standards and norms (“Environmental
Laws”), and holds and has been and is in compliance with all permits,
certificates, licenses, approvals, registrations and authorizations required
under Environmental Laws (“Environmental Permits”), except, in each
case, where any such noncompliance or failure would not, individually or in the
aggregate, have a Material Adverse Effect.


 


(b)           Since September 25, 1996, neither the
Company nor any Subsidiary has received any notice, citation, summons, order or
complaint, and no penalty has been assessed or is pending or threatened by any
third party (including, without limitation, any governmental agency) with
respect to (i) the use or Release (as defined below) of any and hazardous or
toxic substances, wastes or materials, or any pollutants, contaminants, or
dangerous materials regulated as such by Environmental Laws (“Hazardous
Materials”) by or on behalf of the Company or its Subsidiaries, (ii)
non-compliance with Environmental Laws or (iii) failure to hold or comply with
Environmental Permits.  Since September
25, 1996, neither the Company nor any Subsidiary has received any written
claims or demands or other notification that the Company or any Subsidiary is
required by Environmental Law to conduct any material investigation, cleanup,
remedial action or other response action of or with respect to Hazardous
Materials.


 


(c)           No Hazardous Materials have been
released, spilled, leaked, discharged,


 


13

















 


disposed of, pumped, poured,
emitted, emptied, injected, leached, dumped or allowed to escape (“Released”
and as the context requires, “Release”) by the Company or any Subsidiary
that have resulted, or are reasonably likely to result, in remediation
liabilities or obligations, except to the extent any such liabilities or
obligations, individually or in the aggregate, would not have a Material
Adverse Effect.


 


5.7.          Taxes.


 


(a)           Except as set forth in Schedule
5.7.1 hereof, (i) the Company and its Subsidiaries have timely filed with
the appropriate Taxing Authority all Tax Returns that they were required to
file and have timely paid in full all Taxes that they were required to pay;
(ii) all Tax Returns are true, correct and complete except where the failure to
be true, correct and complete would not, individually or in the aggregate, have
a Material Adverse Effect; and (iii) there are no liens for Taxes upon the
Company, any of its Subsidiaries, or their assets, except liens for current
Taxes not yet due and payable.  Except
as set forth on Schedule 5.7.2 hereof, neither the Company nor any of
its Subsidiaries has granted any waiver of any statute of limitations with
respect to, or any extension of a period for the assessment of any Taxes.


 


(b)           As used in this Agreement: (i) “Taxes”
means all income taxes (including any tax on or based upon net income, or gross
income, or income as specially defined, or earnings, or profits, or selected
items of income, earnings, or profits) and all gross receipts, estimated,
sales, use, ad valorem, value-added, transfer, franchise, license, withholding,
payroll, employment, excise, severance, stamp, occupation, premium, property,
or windfall profit taxes, environment, alternative, or add-on minimum taxes,
custom duties or other taxes, fees, assessments, or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any Taxing Authority on the Company or any of its
Subsidiaries; (ii) “Tax Return” means any material return, report,
information return or other document (including any related or supporting
information) filed or required to be filed with any Taxing Authority in
connection with the determination, assessment, or collection of any Taxes paid
or payable by the Company or any of its Subsidiaries; and (iii) “Taxing
Authority” means any federal, state, local, or foreign governmental entity
or other authority (individually or collectively).


 


(c)           Except as set forth on Schedule
5.7.3 hereof, there is no action, suit, proceeding, investigation, audit,
claim, assessment or judgment now pending against the Company or any of its
Subsidiaries in respect of any Tax, and no notice of deficiency or proposed
adjustment for any amount of Tax has been received from any Taxing
Authority.  No Taxing Authority with
which the Company or any of its Subsidiaries does not file Tax Returns has
claimed that such company is or may be subject to taxation by that Taxing
Authority.


 


14

















 


(d)           There is no agreement or arrangement
with any person or entity (other than any tax sharing agreement exclusively
among the Company and its Subsidiaries) pursuant to which the Company or any of
its Subsidiaries would have an obligation with respect to Taxes of another
person or entity following the Closing.


 


(e)           Except as set forth on Schedule
5.7.4, neither the Company nor any of its Subsidiaries has ever been a
member of an affiliated group of corporations (as that term is defined in
Section 1504(a)(1) of the Code) other than the group of which the common parent
is the Company or the group of which the common parent was Amerimax UK, Inc.,
or has any liability for the Taxes of any person (other than any of the Company
and its Subsidiaries) under Treasury Regulation § 1.1502-6 (or any similar
provision of state, local, or foreign law), or as a transferee or successor, by
contract, or otherwise.


 


(f)            Except as disclosed on Schedule
5.7.5 hereof, neither the Company nor any of its Subsidiaries is a party to
any agreement, contract, arrangement or plan that has resulted or could result,
separately or in the aggregate, in the payment of any “excess parachute payment”
within the meaning of Section 280G of the Code.


 


5.8.          Employee
Benefit Matters.


 


(a)           Schedule 5.8.1 hereof lists
all “employee benefit plans,” as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), and all
pension, retirement, supplemental retirement, stock, stock option, basic and
supplemental accidental death and dismemberment, basic and supplemental life
and health insurance, dental, vision, savings, bonus, deferred compensation,
incentive compensation, business travel and accident, holiday, vacation,
severance pay, salary continuation, sick pay, sick leave, short and long term
disability, tuition refund, service award, company car, scholarship,
relocation, patent award, fringe benefit and other employee benefit
arrangements, plans, contracts, policies, or practices maintained, contributed
to, or required to be contributed by the Company or any ERISA Affiliate (as
hereinafter defined) (or with respect to which the Company or any ERISA
Affiliate may have any liability) (the “Benefit Plans”) within the
United States.  Each Benefit Plan
maintained, contributed to or required to be contributed to by the Company or
any ERISA Affiliate (or with respect to which the Company or any ERISA
Affiliate may have liability) outside the United States (the “Foreign Plans”)
is disclosed on Schedule 5.8.2 hereof. 
For purposes of this Section 5.8, the term “ERISA Affiliate”
means (i) any person included with the Company in a controlled group of
corporations within the meaning of Section 414(b) of the Code; (ii) any trade
or business (whether or not incorporated) which is under common control with
the Company within the meaning of Section 414(c) of the Code; (iii) any member
of an affiliated service group of which the Company is a member within the
meaning of Section


 


15

















 


414(m) of the Code; or (iv) any
other person or entity treated as an affiliate of the Company under Section
414(o) of the Code.


 


(b)           As applicable, with respect to each
of the Benefit Plans, true and complete copies of (i) all plan documents
(including all amendments and modifications thereof) and in the case of an
unwritten Benefit Plan, a written description thereof, and in either case all
related agreements including, without limitation the trust agreement and
amendments thereto, insurance contracts, and investment management agreements;
(ii) the most recently filed Form 5500 series and all
schedules thereto, as applicable; (iii) the current summary plan descriptions
and all material modifications thereto; (iv) the most recent trustee
report; (v) copies of any private letter rulings, requests and
applications for determination and determination letters issued with respect to
the Benefit Plans within the past five years and (vi) the equivalent under
applicable local law of items (ii) through (v) with respect to the Foreign
Plans, in each case have been made available to Buyer.


 


(c)           The Company and each ERISA Affiliate
are in compliance with the provisions of ERISA and the Code (including, as
applicable, and without limitation, the qualification requirements of sections
401, et. seq. and the continuation coverage requirements of section 4980B,
thereof) applicable to the Benefit Plans or, in the case of the Foreign Plans,
the applicable laws of each jurisdiction in which any of the Foreign Plans are
maintained, except where noncompliance would not, individually or in the
aggregate, have a Material Adverse Effect. 
Each Benefit Plan has been maintained, operated and administered in
compliance with its terms and any related documents or agreements and the
applicable provisions of ERISA and the Code or of the applicable laws of each
jurisdiction in which any of the Foreign Plans are maintained, except where
noncompliance would not, individually or in the aggregate, have a Material
Adverse Effect.


 


(d)           Except as set forth in Schedule
5.8.3, no Benefit Plan is (or at any time has been) a “multiemployer plan”
as defined in Section 3(37) of ERISA.


 


(e)           There are no pending audits or
investigations by any governmental agency involving the Benefit Plans or the
Foreign Plans, and no threatened or pending claims (except for individual
claims for benefits payable in the normal operation of the Benefit Plans or
Foreign Plans), suits or proceedings involving any Benefit Plan or Foreign
Plan, any fiduciary thereof or service provider thereto, nor is there any
reasonable basis for any such claim, suit or proceeding.


 


(f)            Except as set forth in Schedule
5.8.4 or as disclosed in the SEC Documents, all contributions to, and
payments from, the Benefit Plans and the Foreign Plans, (other than payments to
be made from a trust, insurance contract or other funding medium) which


 


16

















 


may have been required to be
made in accordance with the terms of any such plan, and, when applicable, the
law of the jurisdiction in which such plan is maintained, have been timely
made, except where the failure to make such contributions or payments would
not, individually or in the aggregate, have a Material Adverse Effect.  Except as set forth in Schedule 5.8.4
or as disclosed in the SEC Documents, all such contributions to the Foreign
Plans, and all payments under the Foreign Plans, for any period ending before the
Closing Date that are not yet, but will be, required to be made, are properly
accrued and reflected on the financial statements of the employer maintaining
such plan.


 


(g)           Except as set forth in Schedule
5.8.5 and except for the Euramax UK Pension Plan or as disclosed in the SEC
Documents, the assets of each of the Benefit Plans and the Foreign Plans which
is an “employee pension plan” (as defined in Section 3(2) of ERISA) or
otherwise provides retirement, medical or life insurance benefits following retirement,
are at least equal to the liabilities of such plans, except for failures which
would not, individually or in the aggregate, have a Material Adverse Effect.


 


ARTICLE VI

REPRESENTATIONS AND WARRANTIES OF BUYER


 


Buyers hereby
represent and warrant to the Stockholders as follows:


 


6.1.          Organization.  Each of the Fund and CVC/SSB is a limited
partnership duly created and validly existing under the laws of the State of
Delaware, and the Executive Fund is a limited liability company duly created
and validly existing under the laws of he State of Delaware.  Each Buyer has all requisite limited
partnership or limited liability company power and authority, as applicable, to
carry on its business as it is now being conducted, and to execute, deliver,
and perform this Agreement and the Ancillary Agreements to which it is a party,
and to consummate the transactions contemplated hereby and thereby.


 


6.2.          Power and
Authority.  The execution,
delivery, and performance by each Buyer of this Agreement, and each Ancillary
Agreement to which each Buyer is a party, and the consummation by each Buyer of
the transactions contemplated hereby 
and thereby have been duly authorized by all necessary limited
partnership or limited liability company action, as applicable, on the part of
each Buyer.  This Agreement has been,
and each Ancillary Agreement to which each Buyer is a party will be, duly and
validly executed and delivered by each Buyer and constitutes, or will
constitute, the valid and binding obligation of each Buyer, enforceable against
each Buyer in accordance with its terms.


 


6.3.          No Conflict.  The execution, delivery, and performance by
each Buyer of this


 


17

















 


Agreement, and each Ancillary
Agreement to which each Buyer is a party, and the consummation by each Buyer of
the transactions contemplated hereby and thereby does not and will not, with or
without the giving of notice or the lapse of time, or both, (i) violate
any provision of law, rule, or regulation to which any Buyer is subject,
(ii) violate any order, judgment, or decree applicable to any Buyer,
(iii) violate any provision of the organizational documents of any Buyer
or (iv) violate or result in a breach of or constitute a default (or an event
which might, with the passage of time or the giving of notice, or both,
constitute a default) under, or require the consent of any third party under,
or result in or permit the termination or amendment of any provision of, or
result in or permit the acceleration of the maturity or cancellation of
performance of any obligation under, or result in the creation or imposition of
any Encumbrance of any nature whatsoever upon any assets or property or give to
others any interests or rights therein under any indenture, deed of trust,
mortgage, loan or credit agreement, license, permit, contract, lease, or other
agreement, instrument or commitment to which any Buyer is a party or by which
it may be bound or affected, except, in each case, for violations that in the
aggregate would not materially hinder or impair the ability of any Buyer to
perform its obligations hereunder or the consummation of the transactions
contemplated hereby.  The Fund is, and
as of the Closing will continue to be, an “affiliate” (as such term is defined
in Rule 12b-2 under the Exchange Act as of the date of this Agreement) of
Citicorp Venture Capital, Ltd., a New York Corporation.


 


6.4.          Consents.  Except as set forth on Schedule 6.4
hereof, no consent, approval, or authorization of, or exemption by, or filing
with, any governmental authority or third party is required to be obtained or
made by any Buyer in connection with the execution, delivery and performance by
Buyer of this Agreement or any Ancillary Agreement to which Buyer is a party or
the taking by Buyer of any other action contemplated hereby or thereby.


 


6.5.          Brokers.  Buyer has retained no broker, finder or
investment banking firm to act on its behalf in connection with the
transactions contemplated by this Agreement.


 


6.6.          Purchase
for Investment.  Buyer is
purchasing the Company Stock being purchased by it pursuant to Section 1.1
hereof for investment and not with a view to any public resale or other
distribution thereof, except in compliance with applicable securities laws.


 


6.7.          Sufficient
Funds.  As of the Closing Date,
Buyer will have sufficient funds to consummate the purchase of the Company
Stock being purchased by it pursuant to Section 1.1 hereof.


 


18

















 


ARTICLE VII

COVENANTS


 


7.1.          Cooperation by the Stockholders and
the Company.  From the date
hereof and prior to the Closing, the Stockholders and the Company will use
their respective reasonable best efforts, and will cooperate with Buyer, to
secure all necessary consents, approvals, authorizations, exemptions, and
waivers from governmental authorities or other third parties (including any
required pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1974,
as amended (the “HSR Act”), or similar foreign antitrust/competition
laws), as shall be required in order to enable the Company and the Stockholders
to effect the transactions contemplated hereby, and will otherwise use their
respective reasonable best efforts to cause the consummation of such
transactions, in accordance with the terms and conditions hereof.


 


7.2.          Conduct of the Business Pending
Closing.  From and after the
date hereof until the Closing Date, except as set forth in the disclosure
schedules hereto or unless Buyer shall otherwise consent in writing, the
Company and each its Subsidiaries shall: (a) carry on its business in the
ordinary course in substantially the same manner in which it previously has
been conducted and, to the extent consistent with such business, use its
reasonable best efforts to preserve intact its present business organization,
to keep available in all material respects the services of its present officers
and employees, and to preserve for its business the good will of the customers,
suppliers and others having business relations with it, (b) not amend its
Certificate of Incorporation or Bylaws, or other organizational documents, (c)
not adopt a plan of liquidation or dissolution, and not merge or consolidate
with, or purchase substantially all or a material portion of the assets of, or
otherwise acquire any business of any person, (d) not take any action described
in Section 5.2(a)-(g), nor otherwise take any action or omit to take any
actions which action or omission would result in a breach or inaccuracy of any
of their representations and warranties contained herein in any material
respect at, or as of any time prior to the Closing, (e) maintain its books of
account and records in its usual, regular and ordinary manner, consistent with
its past practice, (f) not take any action or omit to take any action which
will result in a violation of any applicable law or cause a breach of any
agreements, contracts or commitments by it (including, without limitation, the
Contracts), except for violations or breaches which, individually or in the
aggregate, would not have a Material Adverse Effect, (g) not issue, redeem,
repurchase, split or reclassify any capital stock or other equity securities or
issue, become a party to, redeem or repurchase any subscriptions, warrants,
rights, options, convertible securities or other agreements or commitments of
any character relating to its issued or unissued capital stock, or its other
equity securities, if any, or grant any stock appreciation, phantom stock or
similar rights, (h) not agree or commit to do any of the foregoing referred to
in clauses (a) - (g), and (j) promptly advise Buyer of any fact, condition,
occurrence or change known to the Investors or the Company that would cause of
breach of this Section 7.2 or would have a Material Adverse Effect.


 


7.3.          Access.  From and after the date hereof, the Company
shall provide Buyer with


 


19

















 


such
information as Buyer from time to time reasonably may request with respect to
the Company and its Subsidiaries and provide Buyer and its officers,
consultants, employees, counsel, agents and other representatives full access
during regular business hours and upon reasonable notice (but in a manner not
materially disruptive to the Company’s operations) to their respective
properties, books and records as Buyer from time to time reasonably may
request, so that Buyer may have full opportunity to make such investigation as
it shall desire to make of the management, business, properties, environmental
affairs and other affairs of the Company and its Subsidiaries.


 


7.4.          Directors;
Resignations.   At the Closing,
the Investors and the Company will cause to be delivered to the Company written
resignations of each director of the Company or its Subsidiaries identified on Schedule
7.4 hereof.  The Investors and the
Company shall cause all of the directors of the Company immediately prior to
the Closing to execute a unanimous written consent approving the election of
two individuals selected by Buyer as directors of the Company as of Closing.


 


7.5.          Fulfillment
of Agreements.  The Stockholders
and the Company shall use their reasonable best efforts to cause all of the
conditions to the obligations of Buyer under Article VIII of this
Agreement to be satisfied on or prior to Closing.  The Stockholders and the Company shall promptly notify Buyer of
any event or fact coming to any Stockholder’s or the Company’s attention prior
to Closing which causes any of the Stockholders’ or the Company’s
representations, warranties, covenants or agreements contained under this
Agreement that are qualified by materiality limitations to be inaccurate and
those that are not qualified by materiality limitations to be inaccurate in any
material respect.  The Stockholders, to
the extent it is within their control, and the Company shall use their
reasonable best efforts to cure before the Closing any event, transaction or
circumstance occurring after the date of this Agreement that causes or will
cause any such covenant or agreement under this Agreement to be breached or
that renders or will render inaccurate any such representation or warranty
contained in this Agreement.  No notice
given pursuant to this Section 7.5 shall have any effect on (i) the
representations, warranties, covenants or agreements contained in this
Agreement for purposes of determining the satisfaction of any condition
contained herein or (ii) any right to indemnity hereunder.


 


7.6.          Insurance.  The Company and each Subsidiary shall
maintain in full force and effect the policies of insurance held by the Company
or any Subsidiary as of the date hereof, subject only to variations required by
the ordinary operations of its business, or else will obtain, prior to the
lapse of any such policy, substantially similar coverage with insurers of
recognized standing and approved in writing by Buyer.


 


7.7.          Confidentiality.  Each Stockholder shall, and shall cause his
or her affiliates and


 


20

















 


representatives
to, keep confidential and not disclose to any other person or entity or use for
his or its own benefit or the benefit of any other person or entity any
confidential proprietary information, technology, know-how, trade secrets
(including, without limitation, all results of research and development),
product formulas, industrial designs, franchises or inventions of the Company
and its Subsidiaries or their business and operations (“Confidential
Information”) in his, its or their possession or control.  The obligations of the Stockholders under
this Section 7.7 shall not apply to Confidential Information which (i) is or
becomes generally available to the public without breach of the commitment
provided for in this Section; (ii) is required to be disclosed by law, order or
regulation of a court or tribunal or governmental authority or (iii) requested
by any regulatory or other government body; provided, however,
that, in any such case, the Stockholder subject to such requirement shall
notify the Company as early as reasonably practicable prior to disclosure to
allow the Company to take appropriate measures to preserve the confidentiality
of such Confidential Information at the cost of Company.


 


7.8.          Hart-Scott-Rodino
Act.  As soon as practicable
after the date of this Agreement, Buyer, the Investors and the Company shall,
in cooperation with each other, file (or cause to be filed) with each of the
United States Department of Justice (the “DOJ”) and the Federal Trade
Commission (“FTC”), and any required foreign governmental bodies, any
reports or notifications that may be required to be filed by them under the HSR
Act or similar foreign antitrust/competition laws in connection with the
transactions contemplated by this Agreement. 
All fees due from any party to the FTC, DOJ or other foreign governmental
bodies under the HSR Act or similar foreign antitrust/competition laws in
connection with the filing of any of those reports or notifications shall be
paid by the Company.


 


7.9.          Further
Assurances  .  At any time
or from time to time after the Closing, Buyer shall, at the request of any
Stockholder, execute and deliver any further instruments or documents and take
all such further action as such Stockholder may reasonably request in order to
evidence the consummation of the transactions contemplated hereby. At any time
or from time to time after the Closing, each Stockholder shall, at the request
of Buyer, execute and deliver any further instruments or documents and take all
such further action as Buyer may reasonably request in order to evidence the
consummation of the transactions contemplated hereby.


 


7.10.        Assignment
of Registration Rights. 
Effective as of the Closing, and without any further action required by
any party hereto, each Investor hereby assigns to Buyer all of its rights and
benefits under the Registration Rights Agreement, dated as of September 25,
1996, as amended by the First Amendment to the Registration Rights Agreement,
dated December 8, 1999, by and among the Company, the Investors, Citicorp
Venture Capital, Ltd. and the other stockholders named therein.


 


21

















 


7.11.        Exclusivity.  Neither any Stockholder nor the Company nor
any of their respective officers, directors, employees, affiliates, agents or
representatives will, directly or indirectly, encourage, initiate or solicit
offers for, furnish information regarding or engage in any negotiations,
meetings or other communications with any third party concerning, or enter into
any agreements with respect to, any acquisition of the Company Stock being
purchased hereunder, the Company or its Subsidiaries or any of the businesses
of the Company or its Subsidiaries, by any party other than Buyer, and in the
event that during such period any offers are received, the Stockholders and the
Company will promptly communicate to Buyer their existence and terms, and the
identity of the party making such offer.


 


7.12.        Credit
Agreement.  The Company shall
use its commercially reasonable best efforts to obtain all necessary approvals,
amendments, consents or waivers under the Second Amended and Restated Credit
Agreement, dated as of March 15, 2002, among the Company, certain of the
Company’s Subsidiaries, and the Lenders named therein (as amended, the “Credit
Agreement”), or under any Loan Documents (as defined in the Credit
Agreement), which are or become necessary to consummate the transactions
contemplated hereby (the “Senior Lender Approvals”).


 


7.13.        Restrictive
Covenants.


 


(a)           During the period beginning on the
Closing Date and ending on the second (2nd) anniversary of the
Closing Date, no Stockholder shall, nor shall any such Stockholder direct,
encourage or knowingly permit any affiliate to, directly or indirectly, (i)
call-on, solicit or induce, or attempt to solicit or induce, any employee or
staff of the Company or any of its Subsidiaries to leave the employ of the
Company or any of its Subsidiaries for any reason whatsoever (excluding
ordinary course public advertisements not specifically targeted at employees of
the Company or its Subsidiaries), nor (ii) offer or provide employment (whether
such employment is for a Stockholder or any other business or enterprise),
either on a full-time basis or part-time or consulting basis, to any person who
then currently is, or who within six months immediately prior thereto was, an
officer or other management employee of the Company or its Subsidiaries.  No
Investor will be deemed in violation of subclause (ii) of the foregoing
sentence if representatives of separate operating divisions of such Investor
cause such Investor to offer or provide employment to a relevant employee of
the Company or its Subsidiaries as a result of ordinary course public
advertisements, if such representatives of the separate division of that
Investor were not aware of the existence of this Agreement and were not directed,
encouraged, or knowingly permitted to take such actions by representatives of
such Investor who were aware of the existence of this Agreement.


 


(b)           Each Stockholder acknowledges and
agrees that the provisions of this


 


22

















 


Section
7.13 are reasonable and necessary to protect the legitimate business interests
of Buyer and its investment in the Company. 
No Stockholder shall contest that Buyer’s and the Company’s remedies at
law for any breach or threat of breach by such Stockholder or any of its
affiliates of the provisions of this Section 7.13 will be inadequate, and that
Buyer and the Company shall be entitled to seek an injunction or injunctions to
prevent breaches of the provisions of this Section 7.13 and to enforce
specifically such terms and provisions, in addition to any other remedy to
which Buyer or the Company may be entitled at law or equity.  The restrictive covenants contained in this
Section 7.13 are covenants independent of any other provision of this Agreement
or any other agreement between the parties hereunder and the existence of any
claim which any Stockholder may allege against Buyer under any other provision
of the Agreement or any other agreement will not prevent the enforcement of these
covenants.


 


(c)           If any of the provisions contained in
this Section 7.13 shall for any reason be held to be excessively broad as to
duration, scope, activity or subject, then such provision shall be construed by
limiting and reducing it, so as to be valid and enforceable to the extent
compatible with the applicable law or the determination by a court of competent
jurisdiction.


 


7.14.        No
Parachute Payments.  Prior to
the Closing, the Company and its Subsidiaries shall, and each Stockholder shall
cooperate with the Company and its Subsidiaries to: (i) obtain a favorable vote
by the holders of 75% or more of the Company’s outstanding voting shares to
approve any agreement, contract, arrangement or plan disclosed (or required to
be disclosed) on Schedule 5.7.5; and (ii) take, or, in any case in
which whether any such payment is made is discretionary, refrain from taking,
any other action reasonably necessary to prevent such payment from constituting
an “excess parachute payment” within the meaning of Section 280G of the
Code.  For the avoidance of doubt, once
the Company has received the shareholder approval contemplated by this Section
7.14, it is understood that the Company is required to make all such payments
whether or not, despite that approval, such payments constitute “excess
parachute payments.”  In connection
therewith, each Stockholder will execute a written consent or other approval in
the form provided by the Company approving such payments under Section 280G(b)(5).


 


7.15.        D&O
Indemnification.


 


(a)           The Company and Buyer agree that all
rights to indemnification or exculpation by the Company now existing in favor
of each present and former director or officer of the Company (the “Indemnified
Parties”) as provided in the Company Certificate of Incorporation or the
Company Bylaws, in each case as in effect on the date of this Agreement, shall
survive the Closing.  No change to such
indemnification or exculpation rights shall affect or


 


23

















 


reduce rights to indemnification
or exculpation as in effect on the date of this Agreement.  The indemnification and exculpation rights
hereunder shall be considered contract rights and any amendments, repeals or
modifications shall not be effective against the Indemnified Parties as of the
date hereof.


 


(b)           In
addition the Company will provide, for a period of six (6) years after the
Closing, the coverage provided by the policies of directors and officers
liability and fiduciary insurance most recently maintained by the Company (the
“D&O Insurance”); provided, that the Company may substitute
therefor policies that are no less favorable in any material respect than the
Company’s existing D&O Insurance policy or, if substantially equivalent
insurance coverage is unavailable, the best available coverage, so long as such
substitution does not result in gaps or lags in coverage with respect to
matters occurring prior to the Closing; and provided, further, that the Company
shall not be required to pay an annual premium for the D&O Insurance in
excess of 300% of the annual aggregate premium paid by the Company for such
insurance in fiscal year 2002, but in such case shall purchase as much such
coverage as possible for such amount.


 


(c)           Any
Indemnified Party wishing to claim indemnification under this Section 7.15
after the Closing, upon learning of any claim, action, suit, proceeding or
investigation (a “Claim”), shall notify the Company thereof (although
the failure to so notify the Company shall not relieve the Company from any
liability that the Company may have under this Section 7.15, except to the
extent such failure actually prejudices the Company).  In the event of any such Claim, the Company shall have the right
to assume the defense thereof and the Company shall not be liable to such
Indemnified Party for any legal expenses of other counsel incurred after the
Company assumes such defense or any other expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof, except that if
the Company elects not to assume such defense or fails to assume such defense
within fifteen (15) days of receipt of notice, or if under the applicable
standards of professional conduct no one law firm could represent the Company
and the Indemnified Party, the Indemnified Party may retain counsel reasonably
satisfactory to him or her and the Company shall pay all reasonable fees and
expenses of such counsel for the Indemnified Party promptly as statements
therefor are received by the Company; provided, however, that (i) the
Company shall not, in connection with any such action or proceeding or separate
but substantially similar actions or proceedings arising out of the same
general allegations, be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at any time for
all Indemnified Parties, (ii) the Company and the Indemnified Parties will
cooperate in the defense of any such matter and (iii) the Company shall not be
liable for any settlement effected without its prior written consent, which
consent will not be unreasonably withheld or delayed; and provided, further, that the
Company shall not have any obligation hereunder to any Indemnified Party if and
when a court of competent jurisdiction shall ultimately determine that the
indemnification of such Indemnified


 


24

















 


Party in the manner
contemplated hereby is prohibited by applicable law.  The Company will not effect any settlement which would impose any
ongoing obligation upon an Indemnified Party (including, but not limited to,
injunctive relief) absent the prior written consent of the affected Indemnified
Party.


 


This Section 7.15 is intended to benefit the Company,
the Buyer and the Indemnified Parties and their respective heirs, attorneys and
estates, and shall be binding on all successors and assigns of the Company and
the Buyer.


 


 


ARTICLE VIII

CONDITIONS TO BUYER’S OBLIGATIONS


 


The obligation of Buyer to consummate the transactions
contemplated hereby at the Closing shall be subject to the satisfaction (or
waiver) on or prior to the Closing Date of all of the following conditions:


 


8.1.          Representations and Warranties True
and Correct .  All of the
representations and warranties of each of the Stockholders and the Company
contained in this Agreement, in any Ancillary Agreement or in any written
certificate delivered pursuant to this Agreement, shall be true and correct on
the date of this Agreement, such Ancillary Agreement or such certificate, as
the case may be, and shall be true and correct in all material respects on and
as of the Closing Date as if made on and as of the Closing Date (except for
representations and warranties that expressly relate to a date earlier than the
Closing Date which shall continue to be true and correct as of the specified
date and except for representations and warranties that contain Material
Adverse Effect or other materiality qualifications, which shall be true and
correct in all respects).


 


8.2.          Covenants and Agreements Performed.  Each of the Stockholders and the Company
shall have performed or complied with in all material respects, or delivered,
all covenants, agreements, conditions or documents required by this Agreement
to be performed, complied with, or delivered by each of the Stockholders and
the Company prior to or on the Closing Date.


 


8.3.          Stockholders’ and Company Closing
Certificates.  Buyer shall have
been furnished with (i) a certificate executed by the Company (the “Company
Closing Certificate”) and (ii) a certificate executed by the Stockholders’
Representative (on behalf of the Stockholders) (the “Stockholder Closing
Certificate”), respectively, in each case dated the Closing Date,
certifying that the conditions set forth in Sections 8.1 and 8.2 have, with
respect to the Company and the Stockholders, respectively, been fulfilled (or
waived) at or prior to the Closing Date.


 


25

















 


8.4.          No Prohibition or Proceedings.  No statute, rule or regulation, or order of
any court or administrative agency shall be in effect, and no action or
proceeding shall be pending or threatened, that prohibits Buyer from
consummating the transactions contemplated hereby or the ability of the Company
and each of its Subsidiaries to conduct its business substantially in the
manner that such business was being conducted prior to the Closing.


 


8.5.          Consents. 
The waiting period under the HSR Act shall have expired or been
terminated and all other consents, approvals, authorizations, exemptions, and
waivers from governmental agencies that shall be required in order to
consummate the transactions contemplated hereby shall have been obtained.  The Company shall have received the consents
from third parties set forth on Schedule 3.4 hereof in forms reasonably acceptable
to Buyer.


 


8.6.          Opinions. 
Buyer shall have received the written opinions of Kirkland & Ellis
on behalf of CVC Europe and Kenneth L. Spangler, Esq. on behalf of Paribas,
respectively, each dated the Closing Date, substantially to the effect set forth
on Exhibit 8.6.1 and Exhibit 8.6.2 attached hereto, respectively.


 


8.7.          Shareholder Agreement.  The Company and the stockholders of the
Company identified on Schedule 8.8 hereof shall have duly executed and
delivered a Securities Holders Agreement dated the date hereof, such Securities
Holders Agreement to be in full force and effect as of Closing without being
challenged or disputed by such stockholders through and including the Closing.


 


8.8.          Tag-Along Waivers.  Buyer shall have received from the stockholders of the Company
identified on Schedule 8.8 hereof waivers of such stockholders’ rights
under the Shareholders Agreement or otherwise to participate in the purchase
and sale contemplated by this Agreement, such waivers to be in full force and
effect without being challenged or disputed by such stockholders through and
including the Closing, with respect to the number of shares of Company Stock
owned by the applicable stockholders as set forth on Schedule 8.8
hereof.


 


8.9.          FIRPTA Certificate.  Buyer shall have been furnished with a
certificate executed by the Company, in accordance with Treasury Regulation
Section 1.445-2(c)(3), certifying that the Company Shares do not constitute
U.S. real property interests as defined in Section 897(c) of the Code.


 


8.10.        Material Adverse Effect.  Between the date hereof and the Closing
Date, a Material Adverse Effect shall not have occurred.


 


8.11.        Certain Shareholder Approvals.  The Company and its Subsidiaries shall have
obtained 75% or more of the Company’s outstanding voting shares approving any
agreement,


 


26

















 


contract, arrangement or plan
on Schedule 5.7.5 referred to in Section 7.14 hereof, and the Company,
its Subsidiaries and the Stockholders shall have taken all other necessary
action (or refrained from taking an action) to otherwise comply with Section
7.14 hereof and to reasonably satisfy Buyer that no payments made pursuant to
any agreements, contracts, arrangements or plans disclosed on Schedule 5.7.5
have resulted or could result, separately or in the aggregate, in the payment
of any “excess parachute payments” within the meaning of Section 280G of the
Code.


 


ARTICLE IX

CONDITIONS TO STOCKHOLDERS’ OBLIGATIONS


 


The obligations of the Stockholders to consummate the
transactions contemplated hereby at the Closing shall be subject to the
satisfaction or waiver (provided that the consent of all parties to the
Agreement, including any management Tag Sellers, will be required to waive the
performance of the covenants and agreements contained in Section 7.14 hereof)
on or prior to the Closing Date of all of the following conditions:


 


9.1.          Representations
and Warranties True and Correct. 
All of the representations and warranties of Buyer contained in this
Agreement, in any Ancillary Agreement or in any written certificate delivered
pursuant to this Agreement shall be true and correct on the date of this
Agreement, such Ancillary Agreement or such certificate, as the case may be,
and shall be true and correct in all material respects on and as of the Closing
Date as if made on and as of the Closing Date (except for representations and
warranties that expressly relate to a date earlier than the Closing Date which
shall continue to be true and correct as of the specified date and except for
representations and warranties that contain Material Adverse Effect or other
materiality qualifications, which shall be true and correct in all respects).


 


9.2.          Covenants and Agreements Performed.  Buyer shall have performed or complied with
in all material respects, or delivered, all covenants, agreements, conditions
or documents required by this Agreement to be performed, complied with, or
delivered by Buyer prior to or on the Closing Date.


 


9.3.          Buyer Closing Certificate.  The Stockholders’ Representative shall have
been furnished with a certificate executed by an officer of Buyer (the “Buyer
Closing Certificate”), dated the Closing Date, certifying that the
conditions set forth in Sections 9.1 and 9.2 have been fulfilled (or waived) at
or prior to the Closing Date.


 


9.4.          No Prohibition or Proceedings.  No statute, rule or regulation, or order of
any court or administrative agency shall be in effect, and no action or
proceeding shall be pending or


 


27

















 


threatened, that prohibits the
Stockholders from consummating the transactions contemplated hereby.


 


9.5.          Governmental Consents and Other
Approvals.  The waiting period
under the HSR Act shall have expired or been terminated and all consents,
approvals, authorizations, exemptions, and waivers from governmental agencies
that shall be required in order to consummate the transactions contemplated
hereby, if any, shall have been obtained. 
TheSenior Lender Approvals shall have been obtained.


 


9.6.          Ratification by the Fund.  The Fund shall ratify the unanimous written
consent of the Board of Directors of the Company, dated the date hereof, in the
form provided to the Fund on the date hereof.


 


ARTICLE X

TERMINATION PRIOR TO CLOSING


 


10.1.        Termination. 
This Agreement may be terminated at any time prior to the Closing:


 


(a)           By
the mutual written consent of Buyer and the Stockholders’ Representative;


 


(b)           By
either the Stockholders’ Representative or Buyer by written notice given to the
other, if the Closing has not occurred on or before May 15, 2003 (the “Termination
Date”) through no fault of (i) Buyer, in the case of notice from Buyer, or
(ii) the Stockholders or the Company, in the case of notice from the
Stockholders’ Representative; provided, however, that either the
Buyer or the Stockholders’ Representative may, by written notice to the other,
extend the Termination Date to June 15, 2003 if the sole reason that the
Closing shall not have occurred is due to the failure of the conditions set
forth in the first sentence of Sections 8.5 or 9.5 hereof (to the extent
relating exclusively to approvals or authorizations required from governmental
agencies in Europe relating to competition laws);


 


(c)           By
either the Stockholders or Buyer by written notice given to the other, if there
has been a material breach by (i) Buyer, in the case of notice from the
Stockholders’ Representative, or (ii) the Stockholders or the Company, in the
case of notice from Buyer, of any of the representations, warranties, covenants
or agreements made by such person in this Agreement.


 


10.2.        Effect on Obligations.  Termination of this Agreement prior to
Closing pursuant to Section 10.1 hereof shall terminate all obligations
of the parties hereunder, except for their obligations under Section 12.9
(regarding public announcements) and Section 12.6 (regarding


 


28

















 


expenses) hereof; provided,
however, that termination pursuant to Section 10.1(c) hereof
by reason of a willful breach of any representations, warranties, covenants or
agreements shall not relieve the willfully breaching party (whether or not it
is the terminating party) from any liability to the other party hereto arising
from or related to such breach.


 


ARTICLE XI

SURVIVAL AND INDEMNIFICATION


 


11.1.        Survival.  The
representations and warranties under this Agreement or in any statement or
certificate furnished or to be furnished pursuant hereto or in connection with
the transactions contemplated hereby shall survive until the expiration of the
fifteen (15) month period following the Closing Date (the “Survival Period”)
and no action or claim for Losses (as hereinafter defined) resulting from any
misrepresentation or breach of warranty shall be brought or made after the
Survival Period, except that such time limitation shall not apply to:


 


(a)           claims
for Losses under Section 11.2(a)(iii) hereof (relating to certain Taxes), which
may be asserted until December 31, 2005;


 


(b)           claims
for misrepresentations and breach of warranties relating to Sections 3.1
and 6.1 hereof (relating to organization), Section 3.2 and 6.2
hereof (relating to authority), Section 3.5 hereof (relating to
capitalization), and all of Article IV hereof (relating to certain
Stockholder representations), or claims relating to breaches of covenants, all
of which may be asserted until the running of the applicable statute of
limitations (giving effect to any waiver or extension thereof); and


 


(c)           any
claims which have been asserted and which are the subject of a written notice
from the Stockholders to Buyer or from Buyer to the Stockholders, as may be
applicable, prior to the expiration of the Survival Period or other applicable
time restriction set forth in this Section 11.1.


 


11.2.        General Indemnification.  (a) 
Following the Closing, each Stockholder shall severally, and not
jointly, indemnify and defend the Buyer and each of its respective directors,
officers, affiliates, employees, agents and representatives, and shall hold
each of them harmless from and against all Losses that are incurred or suffered
by any of them in connection with or resulting from:


 


(i)            any
misrepresentation or breach of any representation or warranty (excluding the
representations and warranties made in Article IV hereof, which shall be
governed by Section 11.2(b) hereof, but including the representations and
warranties made in Articles III 


 


29

















 


and V
hereof) made by that Stockholder in this Agreement, any Ancillary Agreement or
any disclosure schedule furnished or to be furnished to Buyer in connection
with or as contemplated by this Agreement;


 


(ii)           any
breach of any covenant made by the Company in this Agreement, any Ancillary
Agreement or any disclosure schedule furnished or to be furnished to Buyer in
connection with or as contemplated by this Agreement, which covenant of the
Company requires performance prior to the Closing;


 


(iii)          (a) notwithstanding any disclosures in
the disclosure schedules, any Taxes arising
from adjustments by any Taxing Authority or the filing of an amended Tax
Return, with respect to any Tax Return that was filed, or was required to be
filed, prior to the Closing Date, to the extent the Taxes arising from such
adjustments or amended returns relate directly or indirectly to the
Reorganization or any agreements entered into by the Company or any of its
affiliates in connection with or as result of the Reorganization, and (b) any
Taxes arising from or attributable to a distribution by any Subsidiary of
earnings and profits or distributable reserves that were generated as a result
of the Reorganization, provided, that in the case of such a distribution
by a Subsidiary occurring after the Closing Date, only to the extent Taxes
imposed on such post-Closing distribution are not incurred as a result of
affirmative actions taken by such Subsidiary after Closing which cause such
Subsidiary to be managed and controlled for Tax purposes in a country other
than the country in which it was managed and controlled immediately prior to
the Closing; and


 


(iv)          the
enforcement by Buyer of its rights under this Section 11.2(a).


 


Notwithstanding the foregoing,
the parties acknowledge and agree that Buyer shall not be entitled to
indemnification under Section 11.2(a)(i) in respect of Losses to which it is
entitled to indemnification under Section 11.2(a)(iii) (calculated without
regard to any limitation on such Losses contained herein).


 


(b)           Following
the Closing, each Stockholder shall severally (and not jointly) indemnify the
Buyer and each of its respective directors, officers, affiliates, employees,
agents and representatives, and shall hold each of them harmless from and
against all Losses that are incurred or suffered by any of them in connection
with or resulting from:


 


(i)            any
misrepresentation or breach of any representation or warranty made by such
Stockholder in Article IV hereof; provided, however, that a
Stockholder shall not be liable in any respect for any Losses resulting from
any misrepresentation or breach by any other Stockholder of the representations
and warranties of such other Stockholder contained in


 


30

















 


Article IV hereof;


 


(ii)           any
breach by such Stockholder of any covenants made by such Stockholder herein; provided,
however, that a Stockholder shall not be liable in any respect for any
Losses resulting from any breach by any other Stockholder of any covenants made
by such other Stockholder; and


 


(iii)          the
enforcement by Buyer of its rights under this Section 11.2(b) against such
Stockholder.


 


(c)           Following
the Closing, Buyer shall indemnify the Stockholders and shall hold each of them
harmless from and against all Losses that are incurred or suffered by any of
them in connection with or resulting from:


 


(i)            any
misrepresentation or breach of any representation or warranty made by Buyer in
this Agreement, any Ancillary Agreement or any disclosure schedule furnished or
to be furnished to the Stockholders in connection with or as contemplated by
this Agreement;


 


(ii)           any
breach of any covenant made by Buyer in this Agreement, any Ancillary Agreement
or any disclosure schedule furnished or to be furnished to the Stockholders in
connection with or as contemplated by this Agreement, whether such covenant
requires performance prior to or after the Closing, or any breach of any
covenant made by the Company in this Agreement, any Ancillary Agreement or any
disclosure schedule furnished or to be furnished to the Stockholders in
connection with or as contemplated by this Agreement, which covenant of the
Company requires performance after the Closing; and


 


(iii)          the
enforcement by the Stockholders of their rights under this Agreement.


 


(d)           Notwithstanding
the foregoing, the Stockholders shall not be obligated to provide any such
indemnification for Losses pursuant to claims under Section 11.2(a) hereof
(other than claims under Section 11.2(a)(iii) hereof (relating to certain
Taxes)) unless the aggregate amount of such Losses exceeds U.S.$4,000,000 (the
“Threshold”), in which case the indemnitor will be liable only for its
share of the Losses in excess of such Threshold as provided below.  The maximum amount of Losses Buyer may
recover pursuant to claims under Section 11.2(a) hereof shall not exceed
U.S.$40,000,000 (the “Maximum”); provided, however, that:


 


(i)            the
maximum amount of Losses Buyer may recover pursuant to claims under Section
11.2(a)(iii) hereof (relating to certain Taxes) shall not exceed
U.S.$15,000,000 (the “Special Tax Maximum”);


 


31

















 


(ii)           with
respect to each claim for indemnification brought under Section 11.2(a), no
Stockholder will be liable for more than such Stockholder’s Stockholder Portion
of the Losses relating to such claim (after taking into account the Threshold,
the Maximum and the Special Tax Maximum, if applicable).  The maximum liability of each Stockholder
for Losses relating to all claims for indemnification brought under Section
11.2(a) will in no event exceed the product obtained by multiplying (x) the
Maximum (or, if greater, the amount of Losses if a claim relating to Section
3.1, Section 3.2 or Section 3.5 hereof) by (y) such
Stockholder’s Stockholder Portion;


 


(iii)          the
Threshold and Maximum shall not apply to Losses arising in respect of claims
for misrepresentations and breach of warranties relating to Section 3.1
hereof (relating to organization), Section 3.2 hereof (relating to
authority), Section 3.5 hereof (relating to capitalization) and all of Article
IV hereof (relating to certain Stockholder representations), all of which
may be asserted without limitation; and


 


(iv)          the
Threshold shall not apply to Losses arising in respect of claims under Section
11.2(a)(iii) hereof (relating to certain Taxes).


 


Without limiting the forgoing,
in no event shall the amount of Losses Buyer may recover from a particular
Stockholder pursuant to claims under Section 11.2(a) or 11.2(b) hereof exceed
the Purchase Price Payment received by such Stockholder (or in the case of a
Tag Seller who is a member of Company management, the Purchase Price Payment
received by such Tag Seller less any amount expended by such Tag Seller on
legal fees with respect to such indemnification claim).


 


No limitation or
condition of liability provided in this Article XI shall apply to Buyer,
the Company or a particular Stockholder, respectively, for any
misrepresentation or breach of warranty or covenant contained herein if such
misrepresentation or breach of warranty or covenant was made by Buyer, the
Company, or a particular Stockholder willfully or with intent to deceive (it
being understood that no other Stockholder shall lose the benefits of the
limitations and conditions of liability provided in this Article XI for
breaches made willfully or with intent to deceive by a particular Stockholder).  For purposes of determining the existence of
any misrepresentation, breach of warranty, or nonfulfillment of any covenant or
agreement, or calculating the amount of any Losses incurred in connection with
any such misrepresentation, breach of warranty, or nonfulfillment of any
covenant or agreement, any and all references to Material Adverse Effect shall
be disregarded.


 


The right
to indemnification, payment of Losses or other remedy based on the
representations, warranties, covenants and agreements contained herein will not
be affected by any investigation


 


32

















 


conducted
with respect to the accuracy or inaccuracy of, or compliance with, any such
representation, warranty, covenant, or agreement; provided, however,
that Buyer shall not be entitled to indemnification for Losses under this Article
XI with respect to any breach of a representation or warranty set forth in Article
III hereof if the Indemnitor can establish that Buyer had Buyer Knowledge
of the falsity or inaccuracy of such representation or warranty on or before
the date hereof; provided, further, that indemnification for such
Losses shall only be limited or reduced by the amount of such Losses
attributable to such falsity or inaccuracy for which Buyer had Buyer Knowledge
on or before the date hereof.  For
purposes of the forgoing, “Buyer Knowledge” means the actual knowledge of
Joseph M. Silvestri.


 


(e)           (i)  A party entitled to indemnification
hereunder shall herein be referred to as an “Indemnitee.”  A party obligated to indemnify an Indemnitee
hereunder shall herein be referred to as an “Indemnitor.”  As soon as is reasonable after an Indemnitee
either (a) receives notice of any claim or the commencement of any action by
any third party which such Indemnitee reasonably believes may give rise to a
claim for indemnification from an Indemnitor hereunder or (b) sustains any Loss
not involving a third-party claim or action which such Indemnitee reasonably
believes may give rise to a claim for indemnification from an Indemnitor
hereunder, such Indemnitee shall, if a claim in respect thereof is to be made
against an Indemnitor under Article XI hereof, notify such Indemnitor in
writing of such claim, action or Loss, as the case may be; provided, however,
that failure to notify Indemnitor shall not relieve Indemnitor of its indemnity
obligation, except to the extent Indemnitor is actually prejudiced in its
defense of the action by such failure. 
Any such notification must be in writing and must state in reasonable
detail the nature and basis of the claim, action or Loss, to the extent
known.  Except as provided in this Section
11.2, Indemnitor shall have the right, using counsel reasonably acceptable
to the Indemnitee, to contest, defend, litigate or settle any such third-party
claim which involves (and continues to involve) solely monetary damages; provided
that the Indemnitor shall have notified the Indemnitee in writing of its
intention to do so; provided, further, that (1) the Indemnitor
expressly agrees in such notice to the Indemnitee that, as between the
Indemnitor and the Indemnitee, the Indemnitor shall be solely obligated to
fully satisfy and discharge the third-party claim (and all reasonable fees and
expenses of Buyer and its indemnified parties incurred in connection with such
third-party claim prior to Indemnitor’s assumption of the defense of such
third-party claim), notwithstanding any limitation with respect to
indemnification included in this Agreement other than (to the extent not
required to be waived pursuant to clause (2) below) the Threshold, the Maximum
or the Special Tax Maximum; (2) the Indemnitor shall in its notice to the
Indemnitee (x) waive the applicability of the Threshold to such third party
claim if the amount in controversy could reasonably be expected to be less than
200% of the Threshold or (y) waive the applicability of the Maximum or Special
Tax Maximum (whichever maximum would otherwise be applicable to such third
party claim) if the amount in controversy could reasonably be expected to be
more than 200% of the Maximum or Special Tax Maximum (whichever 


 


33

















 


maximum would otherwise be
applicable to such third party claim); (3) if reasonably requested to do so by
the Indemnitee, the Indemnitor shall have made reasonably adequate provision to
ensure the Indemnitee of the financial ability of the Indemnitor to satisfy the
full amount of any adverse monetary judgment that may result from such third
party claim; and (4) the Indemnitor shall diligently contest the third-party
claim (the conditions set forth in clauses (1), (2), (3) and (4) being
collectively referred to as the “Litigation Conditions”).  The Indemnitee shall have the right to
participate in, and to be represented by counsel (at its own expense) in any
such contest, defense, litigation or settlement conducted by the Indemnitor; provided,
that the Indemnitee shall be entitled to reimbursement therefor if the
Indemnitor shall lose its right to contest, defend, litigate and settle the
third-party claim.  The Indemnitor shall
not be entitled, or shall lose its right, to contest, defend, litigate and
settle the third-party claim if the Indemnitee shall at any time fail to
satisfy the Litigation Conditions and such failure (if capable of being cured)
is not cured within 10 business days after written notice of such failure to
the Indemnitor by the Indemnitee.


 


(ii)           The
Indemnitor, if it shall have assumed the defense of any third-party claim as
provided in this Agreement, shall not consent to a settlement of, or the entry
of any judgment arising from, any such third-party claim without the prior
written consent of the Indemnitee (which consent shall not be unreasonably
withheld or delayed).  The Indemnitor
shall not, without the prior written consent of the Indemnitee, enter into any
compromise or settlement which commits the Indemnitee to take, or to forbear to
take, any action or which does not provide for a complete release by such third
party of the Indemnitee.  The Indemnitee
shall have the sole and exclusive right to settle any third-party claim, on
such terms and conditions as it deems reasonably appropriate, to the extent
such third-party claim involves equitable or other non-monetary relief, and
shall have the right to settle any third-party claim involving monetary damages
with the written consent of the Indemnitor, which consent shall not be
unreasonably withheld or delayed.  All
expenses (including without limitation attorneys’ fees) incurred by the
Indemnitor in connection with the foregoing shall be paid by the
Indemnitor.  No failure by an Indemnitor
to acknowledge in writing its indemnification obligations under this Article XI
shall relieve it of such obligations to the extent such obligations exist.


 


(iii)          If
an Indemnitee is entitled to indemnification against a third-party claim, and
the Indemnitor fails to accept a tender of, or assume the defense of, a
third-party claim pursuant to this Section 11.2, the Indemnitor shall
not be entitled, or shall lose its right, to contest, defend, litigate and
settle such a third-party claim, and the Indemnitee shall have the right,
without prejudice to its right of indemnification hereunder, in its discretion
exercised in good faith, to contest, defend and litigate such third-party
claim, and may settle such third-party claim either before or after the
initiation of litigation, at such time and upon such terms as the Indemnitee
deems fair and reasonable, provided that at least ten (10) days prior to
any such


 


34

















 


settlement, written notice of
its intention to settle is given to the Indemnitor.  If, pursuant to this Section 11.2, the Indemnitee so
contests, defends, litigates or settles a third-party claim for which it is
entitled to indemnification hereunder, then subject to the terms, conditions
and limitations set forth in this Article XI, the Indemnitee shall be
reimbursed by the Indemnitor for the reasonable attorneys’ fees and other
expenses of contesting, defending, litigating and/or settling the third-party
claim which are incurred from time to time.


 


11.3.        Insurance . 
Any amount due as indemnification with respect to any claim under this
Article XI shall take into account and shall be reduced by the amount of any
insurance or indemnification proceeds actually paid by any third party in
respect of the subject matter of such claim (after deducting all attorneys’
fees, expenses and other costs of recovery); provided, that the amounts
of any increase in insurance premium or retroactive premiums or premium
adjustments resulting solely from the making of such claim or claims against
insurers shall, for this purpose, be deemed to be deducted from the amount so
paid by such insurers; provided, further, that the Company
agrees, at the request of the Stockholders’ Representative, to file a claim
against any such insurer (but not indemnitor) and use its reasonable efforts to
pursue any such filed claim, so long as the costs of such activities are paid
by the Investors and the filing of such claim and such activities will not
materially and adversely affect the business of the Company.


 


11.4.        Sole Remedy. 
Following the Closing, the indemnification provided for in this Article
XI shall be the sole remedy of the parties hereto and their respective
successors or assigns in respect of any claim for monetary damages arising
under or out of this Agreement or any Ancillary Agreement; provided, however,
that this Section 11.4 shall not apply to Losses resulting from resulting from
fraud.


 


11.5.        Tax Treatment. 
Any indemnification payments under this Article XI shall be treated for
Tax purposes as adjustments to the aggregate Purchase Price Payments.


 


ARTICLE XII

MISCELLANEOUS


 


12.1.        Interpretive Provisions.


 


(a)           Whenever
used in this Agreement, (i) “including” (or any variation thereof) means
including without limitation and (ii) any reference to gender shall include all
genders.


 


(b)           For
purposes of this Agreement, none of the Stockholders shall be


 


35

















 


considered and affiliate of
Buyer and no Buyer shall be considered an affiliate of any Stockholder.


 


(c)           The
parties acknowledge and agree that (i) each party and its counsel have reviewed
the terms and provisions of this Agreement and have contributed to its
drafting, (ii) the normal rule of construction, to the effect that any
ambiguities are resolved against the drafting party, shall not be employed in
the interpretation of it, and (iii) the terms and provisions of this Agreement
shall be construed fairly as to all parties hereto and not in favor of or
against any party, regardless of which party was generally responsible for the
preparation of this Agreement.


 


12.2.        Entire Agreement.  This Agreement (including the disclosure schedules and the
certificates and exhibits attached hereto) together with the Ancillary
Agreements constitute the sole understanding of the parties with respect to the
subject matter hereof.


 


12.3.        Successors and Assigns.  The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors,
assigns, executors, administrators and heirs of the parties hereto; provided
however, that this Agreement may not be assigned by any Stockholder or
the Company without the prior written consent of Buyer or be assigned by Buyer
without the prior written consent of the Stockholders’ Representative, except
that (i) Buyer may, at its election and provided it remains liable for its
obligations hereunder, assign this Agreement to any affiliate, and (ii) the
Company and Buyer or any such assignee may make a collateral assignment of its
rights (but not its obligations) under this Agreement to any lender providing
financing to Buyer or the Company in connection with the Closing.


 


12.4.        Headings.  The
headings of the Articles, Sections, and paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction hereof.


 


12.5.        Modification and Waiver.  No amendment, modification, or alteration of
the terms or provisions of this Agreement shall be binding unless the same
shall be in writing and duly executed by the parties hereto, except that any of
the terms or provisions of this Agreement may be waived in writing at any time
by the party that is entitled to the benefits of such waived terms or
provisions.  No single waiver of any of
the provisions of this Agreement shall be deemed to or shall constitute, absent
an express statement otherwise, a continuous waiver of such provision or a
waiver of any other provision hereof (whether or not similar).  No delay on the part of any party in
exercising any right, power, or privilege hereunder shall operate as a waiver
thereof.


 


12.6.        Expenses. 
Except as otherwise expressly provided herein, the Company shall bear
the reasonable out of pocket expenses incurred on or prior to the Closing Date
by the Company,


 


36

















 


Buyer and the Stockholders in
each case incident to this Agreement and the transactions contemplated hereby,
including, without limitation, all fees and disbursements of counsel and
accountants retained by such party, whether or not the transactions
contemplated hereby shall be consummated.


 


12.7.        Notices.  Any
notice, request, instruction, or other document to be given hereunder by any
party hereto to any other party shall be in writing and shall be given by
delivery in person, by electronic facsimile transmission, by overnight courier
or by registered or certified mail, postage prepaid (and shall be deemed given
when delivered if delivered by hand, when transmission confirmation is received
if telecopied, three days after mailing if mailed, and one business day after
deposited with an overnight courier service if delivered by overnight courier),
as follows:


 


if to CVC Europe, CVC EJ or the Stockholders’
Representative, to:


 


CVC
Capital Partners SA

40 rue La Perouse

75116 Paris, France

Attn: Ronald A. Collins

Fax No.: +33-(0)1-4502-2301


 


with a copy (which shall not constitute notice to any
of such Persons) to:


 


Kirkland
& Ellis

153 East 53rd Street

New York, NY 10022

Attn:  Adrian van Schie, Esq.


Fax
No.: (212) 446-4900


 


if to Buyer to:


 


Citicorp
Venture Capital Equity Partners, L.P.

399 Park Avenue, 14th Floor

New York, NY 10043

Attention:  Joseph M. Silvestri

Fax No.: (212) 888-2940


 


with a copy (which shall not constitute notice to
Buyer) to:


 


37

















 


Dechert
LLP

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, Pennsylvania 19103-2793

Attention: Craig L. Godshall, Esq.

Fax No.: (215) 994-2222


 


if to Paribas to:


 


BNP
Paribas

787 Seventh Avenue

New York, New York 10019

Attention: Steve Alexander

Fax No.: (212) 841-3558


 


with a copy (which shall not constitute notice to
Paribas) to:


 


Kenneth
L. Spangler, Esq.

BNP Paribas

787 Seventh Avenue

New York, NY 10019

Fax No.: (212) 841-2599


 


If to the Company to:


 


Euramax
International, Inc.


5445 Triangle
Parkway, Suite 350


Norcross,
Georgia 30092


Attention:
Chief Executive Officer


Facsimile:
(770) 263-8031


 


or at such other address
for a party as shall be specified by like notice.


 


12.8.        Governing Law; Consent to
Jurisdiction.  This Agreement
shall be construed in accordance with and governed by the laws of the State of
New York applicable to agreements made and to be performed wholly within that
jurisdiction.  Each party hereto, for
itself and its successors and assigns, irrevocably agrees that any suit, action
or proceeding arising out of or relating to this Agreement may be instituted in
the United States District Court for the Southern


 


38

















 


District of New York, United
States of America or in the absence of jurisdiction, the state courts located
in New York, New York, and generally and unconditionally accepts and
irrevocably submits to the non-exclusive jurisdiction of the aforesaid courts
and irrevocably agrees to be bound by any final judgment rendered thereby from
which no appeal has been taken or is available in connection with this
Agreement.  Each party, for itself and
its successors and assigns, irrevocably waives any objection it may have now or
hereafter to the laying of the venue of any such suit, action or proceeding,
including, without limitation, any objection based on the grounds of forum non
conveniens, in the aforesaid courts. 
Each of the parties, for itself and its successors and assigns,
irrevocably agrees that all process in any such proceedings in any such court
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to it at its address
set forth in Section 12.7 hereof or at such other address of which the
other parties shall have been notified in accordance with the provisions of Section
12.7 hereof, such service being hereby acknowledged by the parties to be
effective and binding service in every respect.  Nothing herein shall affect the right to serve process in any
other manner permitted by law.


 


12.9.        Public Announcements.  Neither any Stockholder, the Company nor
Buyer shall make any public statements, including, without limitation, any
press releases, with respect to this Agreement and the transactions
contemplated hereby without the prior written consent of the Stockholders’
Representative and the Company, for public statements by Buyer, or of Buyer,
for any public statements of the Company or the Stockholders (which consent
shall not be unreasonably withheld) except as may be required by law.  If a public statement is required to be made
by law, the parties shall consult with each other in advance as to the contents
and timing thereof.


 


12.10.      No Third Party Beneficiaries.  Except as provided in Section 7.15 hereof,
this Agreement is intended and agreed to be solely for the benefit of the
parties hereto and their permitted successors and assigns, and no other party
(other than the Stockholders’ Representative) shall be entitled to rely on this
Agreement or accrue any benefit, claim, or right of any kind whatsoever
pursuant to, under, by, or through this Agreement.


 


12.11.      Counterparts. 
This Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original and all of which shall
constitute the same instrument.


 


12.12.      Existing Shareholders Agreement.  All parties hereto (include any Tag Sellers)
acknowledge and agree that upon Closing, the Shareholders Agreement shall
terminate (it being understood that the parties to the Securities Holders
Agreement described in Section 8.7 hereof will be bound by such Securities
Holders Agreement).


 


39

















 


ARTICLE XIII

CERTAIN DEFINITIONS


 


The following
terms shall have the meanings set forth below:


 


“Ancillary
Agreement” means any agreement, exhibit, statement, document or certificate
executed and delivered in accordance with or required by this Agreement, and
any other agreement or certificate specifically identified as an Ancillary
Agreement for purposes of this Agreement.


 


“business
day” means any day other than a day on which banks in the State of New York
or in London, England are required or authorized to be closed.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Contracts”
means all written agreements, contracts and commitments of the following types
to which the Company or any Subsidiary is a party or by which the Company or
any Subsidiary or any of their properties is bound as of the date hereof and
between the date hereof and the Closing Date (including, without limitation,
real property leases and labor or employment-related agreements): (a) joint
venture and limited partnership agreements; (b) mortgages, indentures, loan or
credit agreements, security agreements and other agreements and instruments
relating to the borrowing of money or extension of credit; (c) agreements for
the sale of goods or performance of services by or with any customer or vendor
(or any group of related vendors) that had annual aggregate payments exceeding
$5,000,000 in any of the last three calendar years; (d) lease agreements for
machinery and equipment, motor vehicles, or furniture and office equipment or
other personal property by or with any vendor (or any group of related vendors)
that had annual aggregate payments exceeding $1,000,000 in any of the last
three calendar years; (e) agreements restricting in any manner the right of the
Company to compete with any other person, restricting the right of the Company
to sell to or purchase from any other person; (f) agreements between the
Company and any of its affiliates; (g) guaranties, performance, bid or
completion bonds, surety and appeal bonds, return of money bonds, and surety or
indemnification agreements; (h) custom bonds and standby letters of credit; (i)
any license or other agreements to which the Company or any Subsidiary is a
party regarding any Intellectual Property of the Company or any Subsidiary or
any Intellectual Property of others; (j) other agreements, contracts and
commitments which cannot be terminated by the Company or any Subsidiary on
notice of thirty (30) days or less and without payment by the Company or any
Subsidiary of less than $10,000 upon such termination and (k) powers of
attorney.


 


“control”
(including the terms “controlled by” and “under common control with”) means


 


40

















 


the possession, directly or
indirectly or as trustee or executor, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of stock, as trustee or executor, by contract or credit arrangement
or otherwise;


 


“GAAP”
means United States generally accepted accounting principles.


 


“Knowledge”
of a Stockholder means (i) with respect to each and every Stockholder, the
actual knowledge of Ronald A. Collins and Rolly van Rappard and (ii) with
respect to any particular Stockholder that is a natural person, the actual
knowledge of such Stockholder himself.


 


“Losses”
shall mean any and all losses, liabilities, damages (including, without
limitation, special, consequential and punitive damages), penalties (including,
without limitation, governmental penalties,) obligations, awards, fines,
deficiencies, interest, claims (including third party claims (including,
without limitation, whether or not meritorious), costs and expenses whatsoever
(including, without limitation, reasonable attorneys’, consultants’ and other
professional fees and disbursements of every kind, nature and description)
resulting from, arising out of or incident to any matter for which
indemnification is provided under this Agreement; provided, that Losses
shall not include punitive damages unless payable to third parties.


 


“Material
Adverse Effect” means any circumstance or event which, individually or in
the aggregate with any other circumstance or event, is reasonably likely to
have a materially adverse effect on the business, properties, operations,
earnings, prospects, condition (financial or otherwise), products, assets,
results of operations or liabilities of the Company or its Subsidiaries taken
as a whole.  For the purposes of this
Agreement, the determination of whether a breach of a representation and
warranty or covenant of this Agreement shall be deemed to give rise to a
Material Adverse Effect shall be determined on a cumulative basis by adding the
effect of the breach of any such representation and warranty or covenant
(determined without regard to any materiality or Material Adverse Effect
qualifiers) to the effect of all other breaches of representations and
warranties and covenants of this Agreement (determined without regard to any
materiality or Material Adverse Effect qualifiers) for each of the applicable
period or periods to which each such representation, warranties or covenants
relate, in all cases before applying the materiality standard set forth in the
preceding sentence, and then determining whether, for any of the applicable
periods, such aggregate sum exceeds the materiality standard set forth in the
preceding sentence.  For purposes of
this definition of Material Adverse Effect, the effect of any matter as to any
past period shall be determined based on its actual effect, and its effect as
to any future period shall be determined based on the effect that such matter
is reasonably likely to have.


 


“Person”
or “person” means an individual, corporation, partnership, association,
joint venture, limited liability company, trust, unincorporated organization,
other entity or group (as


 


41

















 


group is defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended).


 


“Reorganization”
shall have the meaning assigned to it in the Amended and Restated Supplemental
Indenture, effective December 14, 1999, among Euramax Ltd. and the other
Issuers named therein, the Guarantors named therein and The Chase Manhattan
Bank, as Trustee.


 


“Stockholder
Portion” means, with respect to each Stockholder, the percentage obtained
by dividing the number of shares of Company Stock being sold by such
Stockholder hereunder by the aggregate number of shares of Company Stock
outstanding as of the date hereof on a fully-diluted basis (taking into account
exercises of any outstanding options).


 


“Subsidiary”  shall mean any corporation, partnership,
joint venture or other entity in which the Company (a) owns, directly or indirectly,
50% or more of the outstanding voting securities or equity interests or (b) is
a general partner with 50% or more of the voting partnership interests.


 


42

















 


IN WITNESS
WHEREOF, each of the parties hereto has caused this Agreement to be executed on
its behalf as of the date first above written.


 


	
   

  	
  THE COMPANY

  
	
   

  	
   

  
	
   

  	
  EURAMAX INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BUYER

  
	
   

  	
   

  
	
   

  	
  CITIGROUP VENTURE CAPITAL

  
	
   

  	
  EQUITY PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
  By: CVC
  PARTNERS LLC

  
	
   

  	
  Its: GENERAL
  PARTNER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  CVC EXECUTIVE FUND LLC

  
	
   

  	
   

  
	
   

  	
  By:
  CITIGROUP VENTURE CAPITAL GP

  HOLDINGS, LTD., its Managing Member

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  CVC/SSB EMPLOYEE FUND, L.P.

  
	
   

  	
   

  
	
   

  	
  By: CVC
  PARTNERS, LLC, its General Partner

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
										



 


43

















 


IN WITNESS WHEREOF, each of the parties hereto has
caused this Agreement to be executed on its behalf as of the date first above
written.


 


	 
	
   

  	
  STOCKHOLDERS

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  CVC EUROPEAN EQUITY PARTNERS, L.P.

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
   

  	
   

  	 

	 
	
   

  	
  Its:

  	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
   

  	
   

  	 

	 
	
   

  	
  Name:

  	
   

  	
   

  	 

	 
	
   

  	
  Title:

  	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  CVC EUROPEAN EQUITY PARTNERS

  (JERSEY), L.P.

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
   

  	
   

  	 

	 
	
   

  	
  Its:

  	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
   

  	
   

  	 

	 
	
   

  	
  Name:

  	
   

  	
   

  	 

	 
	
   

  	
  Title:

  	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  BNP PARIBAS

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
   

  	
   

  	 

	 
	
   

  	
  Name:

  	
   

  	
   

  	 

	 
	
   

  	
  Title:

  	
   

  	
   

  	 

	 
	
   

  	
   

  	
   

  	
   

  	 

	 
	
   

  	
   

  	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
   

  	
   

  	 

	
   

  	
  Name:

  
	
   

  	
  Title:

  
										



 


44

















 


EXHIBIT 1.1


 


	
  Stockholder

  	
   

  	
  Number of
  Common

  Shares

  	
   

  
	
  CVC European Equity Partners, L.P.

  	
   

  	
  178,115.21

  	
   

  
	
  CVC European Equity Partners (Jersey), L.P.

  	
   

  	
  21,445.36

  	
   

  
	
  BNP Paribas

  	
   

  	
  44,346.80

  	
   

  



 


45

















 


 


	
  Stockholder

  	
   

  	
  Number of Common Shares

  
	
  J. David
  Smith

  	
   

  	
  2,938.42

  
	
  Mitchell
  Lewis

  	
   

  	
  2,234.12

  
	
  David Pugh

  	
   

  	
  1,029.51

  
	
  R. Scott
  Vansant

  	
   

  	
  1,495.32

  
	
  Rob Dresen

  	
   

  	
  632.85

  
	
  Aloyse
  Wagener

  	
   

  	
  598.29

  
	
  Scott
  Anderson

  	
   

  	
  585.00

  
	
  Dudley Rowe

  	
   

  	
  423.00

  
	
  Stuart
  Wallis

  	
   

  	
  3819.94

  
	
  Richard
  Cashin

  	
   

  	
  7,156.92

  
	
  M. Saleem
  Muqaddam

  	
   

  	
  132.99

  
	
  Euramax
  International, Inc.*

  	
   

  	
  883.75

  



 












*      Refers
to the shares being issued by the Company to the Fund at Closing in connection
with the cash out of up to 633.75 option shares held by Nick Dowd and 250
option shares held by Ron Stepanchik.


 


46

















 


Exhibit 1.3


 


SALE
NOTICE


 


 


TO:                         Euramax International,
Inc. (the “Company”)


 


FROM:                                                         CVC
European Equity Partners, L.P., CVC European Equity Partners (Jersey), L.P. and
BNP Paribas (collectively, the “Investors”)


 


DATE:    April 15, 2003


 


RE:                         Sale
Notice pursuant to Section 1.3 of the Stock Purchase Agreement, dated the date
hereof, among Citigroup Venture Capital Equity Partners, L.P. and affiliates,
the Company and the Investors (the “Stock Purchase Agreement”) and
Section 3(c) of the Stockholders Agreement, dated December 8, 1999, by and
among the Company and the stockholders named therein (the “Stockholders
Agreement”)


 


This Sale Notice
is being delivered to you pursuant to Section 1.3 of the Stock Purchase
Agreement and Section 3(c) of the Shareholders Agreement.


 


(a)           Subject to the terms and conditions
of the Stock Purchase Agreement, each Investor is proposing to sell all of its
shares of Common Stock of the Company (a total of 243,907.37 shares) for a cash
purchase price of U.S. $400.00 per share. 
Citigroup Venture Capital Equity Partners, L.P. and its affiliates CVC
Executive Fund LLC and CVC/SSB Employee Fund, L.P. (collectively, the “Buyers”)
are the proposed purchasers.  The Buyers
are affiliates of Citicorp Venture Capital. 
The proposed purchase and sale of the shares are subject to all of the
terms and conditions set forth in the Stock Purchase Agreement, which is
attached as Exhibit A.


 


(b)           In accordance with Section 3(c) of
the Stockholders Agreement and Section 1.3 of the Stock Purchase Agreement, the
Company must notify all of the other stockholders of the Company of this Sale
Notice on the date hereof.


 


(c)           Each other stockholder may elect to
participate in the purchase and sale contemplated by the Stock Purchase
Agreement, at the same purchase price of U.S. $400.00 per share and on the
terms and conditions applicable to all “Stockholders” under the Stock Purchase
Agreement, by delivering a written acceptance notice to the Investors within
seven days of the date of this Sale Notice (the “Notice Deadline”).  The acceptance notice must indicate the
maximum number of shares that stockholder desires to sell to the Buyer pursuant
to the terms


 


47

















 


and conditions of the Stock Purchase Agreement and must be accompanied
by an executed Joinder to the Stock Purchase Agreement in the form attached as Exhibit
B hereto.


 


(d)           It is a condition to the Buyers’
obligations to purchase shares that the stockholders identified on Schedule 8.8
to the Stock Purchase Agreement execute a letter agreement in the form attached
hereto as Exhibit C (a “Letter Agreement”).  Each of those stockholders must include a
signed Letter Agreement with his acceptance notice.


 


(e)           All acceptance notices, together with
the required Joinders and (for those stockholders identified on Schedule 8.8
of the Stock Purchase Agreement) Letter Agreements, must be duly executed and
delivered by the other stockholders to the Investors on or before the Notice
Deadline.  Original execution copies of
the foregoing documents will be accepted for delivery by the Investors at the
following address:


 


Dechert LLP


4000 Bell Atlantic Tower


1717 Arch Street


Philadelphia, Pennsylvania 19103-2793


Attention: Craig L. Godshall, Esq.


Phone No.: 215.994.2491


Fax No.: 215.994.2222


 


(f)            If anyone has any questions
regarding this Sale Notice, they should contact Craig Godshall of Dechert LLP
at (215) 994-2491.


 


 


	 
	
  CVC European
  Equity Partners, L.P.

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
  By:

  	
   

  	
   

  	
   

  	 

	 
	
   

  	
  Name:

  	
   

  	
   

  	 

	 
	
   

  	
  Title:

  	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
  CVC European
  Equity Partners (Jersey), L.P.

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
  By:

  	
   

  	
   

  	
   

  	 

	 
	
   

  	
  Name:

  	
   

  	
   

  	 

	 
	
   

  	
  Title:

  	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
   

  	 

	 
	
  BNP Paribas

  	
   

  	 

	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
								



 


48

















 


Exhibit
A


 


STOCK
PURCHASE AGREEMENT


 


(Attached)


 


49

















 


Exhibit
B


 


Form
of Joinder


 


JOINDER
TO THE STOCK PURCHASE AGREEMENT


 


THIS JOINDER to
the Stock Purchase Agreement, dated April    , 2003, among
Citigroup Venture Capital Equity Partners, L.P., CVC Executive Fund LLC,
CVC/SSB Employee Fund, L.P, Euramax International, Inc. (the “Company”)
and the Stockholders of the Company named therein (the “Stock Purchase
Agreement”), is made and entered into by the stockholder (“Stockholder”)
whose signature appears below, on the date indicated below.


 


WHEREAS,
Stockholder desires to participate in the purchase and sale contemplated by the
Stock Purchase Agreement on the terms and conditions set forth therein, and
Stockholder desired to become a party to the Stock Purchase Agreement in
accordance with the terms hereof.


 


NOW, THEREFORE, in
consideration of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Stockholder
hereby agrees as follows:


 


(a)           By executing this Joinder I shall be
fully bound by, and subject to, all of the agreements, covenants, terms and
conditions of the Stock Purchase Agreement as though an original party thereto
as a “Tag Seller” and a “Stockholder” thereunder.


 


(b)           I have full legal right, power and
authority to enter into this Joinder and to perform my obligations hereunder
without the need for the consent of any other person.


 


(c)           This Joinder has been duly
authorized, executed and delivered by me and constitutes my valid and binding
obligation enforceable against me in accordance with the terms hereof.


 


(d)           I have executed this Joinder and
declare that the information contained herein is current, complete and accurate
and may be relied upon by all parties to the Stock Purchase Agreement.


 


(e)           The validity, performance,
construction and effect of this Joinder shall be governed by and construed in
accordance with the internal law of the State of New York, without giving
effect to principles of conflicts of law.


 


50

















 


	
   

  	
  STOCKHOLDER

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
				



 


51

















 


Exhibit
C


 


Form
Letter Agreement


 


Euramax International, Inc.


5445 Triangle Parkway, Suite 350


Norcross, Georgia 30092


 


April 15, 2003


 


 


 


Gentlemen:


 


This Letter
Agreement (the “Letter Agreement”) sets forth a binding agreement and is
entered into in connection with the Sale Notice (“Sale Notice”), dated April
15, 2003, from CVC European Equity Partners, L.P. (“CVC Europe”), CVC European
Equity Partners (Jersey), L.P. (“CVC Europe Jersey”) and BNP Paribas
(“Paribas”) to Euramax International, Inc., a Delaware corporation (the
“Company”).  The Sale Notice was
delivered pursuant to the terms of the Shareholders Agreement, dated December
8, 1999, by and among the Company, CVC Europe, CVC Europe Jersey, Citicorp
Venture Capital, Ltd., Paribas and the stockholders of the Company named
therein (the “Shareholders Agreement”) and the Stock Purchase Agreement, dated
as of the date hereof, among Citigroup Venture Capital Equity Partners, L.P.,
the Company and the stockholders of the Company named therein (the “Stock
Purchase Agreement”).


 


You hereby waive
any “tag-along” rights you have pursuant to Paragraph 3(c) of the Shareholders
Agreement or otherwise and any other rights you may have to sell shares of
Company stock in the transactions contemplated by the Stock Purchase Agreement,
except that you will sell, on the terms and conditions stated in the Stock
Purchase Agreement, [     ] shares of Class A Common
Stock to the Fund at Closing (as defined in the Stock Purchase Agreement).


 


You hereby
acknowledge and agree that except for (1) grants of
[        ] shares of Company restricted
stock pursuant to a Restricted Stock Agreement entered into on the date hereof,
made to you under the Company’s 2003 Equity Compensation Plan, in the event of,
and subject to, the Closing and (2)
[            ],
neither the Company nor its subsidiaries are obligated to make any payments to
you, or confer benefits or accelerate benefits of yours under


 


52

















 


any contract, option agreement, benefit plan or any other plan or
arrangement of or with the Company (including, without limitation, any
severance or employment agreement between you and the Company or its
subsidiaries, the Company’s 1999 Phantom Stock Plan, the Company’s Incentive
Compensation Plan and the Company’s Supplemental Executive Retirement Plan) in
connection with or as a result of the transactions contemplated by the Stock
Purchase Agreement, and you are not entitled to or have any right to receive
any payments, benefits or other compensation in connection with or as a result
of the transactions contemplated by the Stock Purchase Agreement.


 


Please execute
below to acknowledge your agreement to the foregoing terms.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  EURAMAX INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED

  	
   

  
	
  TO:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [INSERT SHAREHOLDER’S NAME]

  	
   

  
	
   

  	
   

  
	
  Dated: April 15, 2003

  	
   

  
					



 


53

















 


EXHIBIT 8.6.1


 


 


          
    , 2003


 


Citigroup Venture Capital Partners, L.P.

CVC Executive Fund LLC

CVC/SSB Employee Fund, L.P.


 


Gentlemen:


 


We are issuing this
opinion letter in our capacity as special legal counsel to CVC European Equity
Partners, L.P., a Delaware limited partnership (the “Partnership”), in
response to the requirement in Section 8.6 of the Stock Purchase Agreement
dated as of April      , 2003 (the “Purchase
Agreement”), by and among Euramax International, Inc. (“Euramax”),
Citigroup Venture Capital Partners, L.P. (the “Fund”), CVC Executive
Fund LLC (the ”Executive Fund”), CVC/SSB Employee Fund, L.P. (the “Employee
Fund” and together with the Fund and the Executive Fund, the “Buyers”
or “you”), the Partnership and certain other stockholders of Euramax.


 


Subject to the assumptions, qualifications, exclusions
and other limitations which are identified in this letter and in the schedules
attached to this letter, we advise you that:


 


1.             The Partnership is a limited
partnership existing and in good standing under the Delaware Revised Uniform
Limited Partnership Act, as revised (the “Act”).


 


2.             The Partnership has the partnership
power to enter into and perform its obligations under the Purchase Agreement.


 


3.                                       The
Partnership’s execution, delivery and performance of the Purchase Agreement
have been authorized by all necessary partnership action on the part of the
Partnership.


 


4.                                       The
Partnership has duly executed and delivered the Purchase Agreement.


 


54

















 


5.                                       The
Partnership’s execution, delivery and performance of the Purchase Agreement do
not violate its certificate of limited partnership or its amended and restated
agreement of limited partnership.


 


6.                                       The
Purchase Agreement is a valid and binding obligation of the Partnership and is
enforceable against the Partnership in accordance with its terms.


 


In preparing this letter,
we have relied without any independent verification upon the assumptions
recited in Schedule B to this letter and upon:  (i) information contained in certificates obtained from
governmental authorities; (ii) factual information represented to be true
in the Purchase Agreement; (iii) factual information provided to us by the
Partnership in a Support Certificate signed by the Partnership and its general
partner; and (iv) factual information we have obtained from such other
sources as we have deemed reasonable. 
We have assumed without investigation that there has been no relevant
change or development between the dates as of which the information cited in
the preceding sentence was given and the date of this letter and that the information
upon which we have relied is accurate and does not omit disclosures necessary
to prevent such information from being misleading.  For purposes of each opinion in paragraph 1, we have relied
exclusively upon a certificate issued by the Secretary of State of the State of
Delaware, and such opinion is not intended to provide any conclusion or
assurance beyond that conveyed by that certificate.


 


While we have not
conducted any independent investigation to determine facts upon which our
opinions are based or to obtain information about which this letter advises
you, we confirm that we do not have any actual knowledge which has caused us to
conclude that our


 


55

















 


reliance and assumptions cited in the preceding paragraph are
unwarranted or that any information supplied in this letter is wrong.  The term “actual knowledge” whenever
it is used in this letter with respect to our firm means conscious awareness at
the time this letter is delivered on the date it bears by the following
Kirkland & Ellis lawyers who have had significant involvement with
negotiation or preparation of the Purchase Agreement  (herein called “our Designated Transaction Lawyers”):
Adrian van Schie and Armand A. Della Monica.


 


Our advice on every legal
issue addressed in this letter is based exclusively on the Act, except that the
opinion in paragraph 6 is based on the internal law of New York and the federal
law of the United States.  We advise you
that issues addressed by this letter may be governed in whole or in part by
other laws, but we express no opinion as to whether any relevant difference
exists between the laws upon which our opinions are based and any other laws
which may actually govern.  Our opinions
are subject to all qualifications in Schedule A and do not cover or
otherwise address any law or legal issue which is identified in the attached Schedule C
or any provision in the Purchase Agreement of any type identified in Schedule
D.  Provisions in the Purchase
Agreement which are not excluded by Schedule D or any other part of this
letter or its attachments are called the “Relevant Agreement Terms.”


 


Our advice on each legal
issue addressed in this letter represents our opinion as to how that issue
would be resolved were it to be considered by the highest court of the
jurisdiction upon whose law our opinion on that issue is based.  The manner in which any particular issue


 


56

















 


would be treated in any actual court case would depend in part on facts
and circumstances particular to the case, and this letter is not intended to
guarantee the outcome of any legal dispute which may arise in the future.  It is possible that some Relevant Agreement
Terms may not prove enforceable for reasons other than those cited in this
letter should an actual enforcement action be brought, but (subject to all the
exceptions, qualifications, exclusions and other limitations contained in this
letter) such unenforceability would not in our opinion prevent you from
realizing the principal benefits purported to be provided by the Relevant
Agreement Terms.


 


This letter speaks as of
the time of its delivery on the date it bears. We do not assume any obligation
to provide you with any subsequent opinion or advice by reason of any fact
about which our Designated Transaction Lawyers did not have actual knowledge at
that time, by reason of any change subsequent to that time in any law covered
by any of our opinions, or for any other reason.  The attached schedules are an integral part of this letter, and
any term defined in this letter or any schedule has that defined meaning
wherever it is used in this letter or in any schedule to this letter.


 


You may rely upon this
letter only for the purpose served by the provision in the Purchase Agreement
cited in the initial paragraph of this letter in response to which it has been
delivered.  Without our written consent:
(i) no person other than you may rely on this letter for any purpose;
(ii) this letter may not be cited or quoted in any financial statement,
prospectus, private placement memorandum or other similar document;
(iii) this letter may not be cited or


 


57

















 


quoted in any other document or communication which might encourage reliance
upon this letter by any person or for any purpose excluded by the restrictions
in this paragraph; and (iv) copies of this letter may not be furnished to
anyone for purposes of encouraging such reliance.


 


	
   

  	
  Sincerely,

  
	
   

  
	
   

  
	
   

  	
  Kirkland &
  Ellis

  



 


58

















 


EXHIBIT 8.6.1


 


Schedule A


 


General
Qualifications


 


All of our opinions (“our
opinions”) in the letter to which this Schedule is attached (“our letter”)
are subject to each of the qualifications set forth in this Schedule.


 


ARTICLE
XIVBankruptcy and Insolvency Exception. 
Each of our opinions is subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws.  This exception includes:


 


14.1.the Federal
Bankruptcy Code and thus comprehends, among others, matters of turn-over,
automatic stay, avoiding powers, fraudulent transfer, preference, discharge,
conversion of a non-recourse obligation into a recourse claim, limitations on
ipso facto and anti-assignment clauses and the coverage of pre-petition
security agreements applicable to property acquired after a petition is filed;


 


14.2.all other Federal
and state bankruptcy, insolvency, reorganization, receivership, moratorium,
arrangement and assignment for the benefit of creditors laws that affect the
rights of creditors generally or that have reference to or affect only
creditors of specific types of debtors;


 


14.3.state fraudulent
transfer and conveyance laws; and


 


14.4.judicially developed
doctrines in this area, such as substantive consolidation of entities and
equitable subordination.


 


ARTICLE
XVEquitable Principles Limitation. 
Each of our opinions is subject to the effect of general principles of
equity, whether applied by a court of law or equity.  This limitation includes principles:


 


15.1.governing the
availability of specific performance, injunctive relief or other equitable
remedies, which generally place the award of such remedies, subject to certain
guidelines, in the discretion of the court to which application for such relief
is made;


 


15.2.affording equitable
defenses (e.g., waiver, laches and estoppel) against a party seeking
enforcement;


 


15.3.requiring good faith
and fair dealing in the performance and enforcement of a contract by the party
seeking its enforcement;


 


15.4.requiring
reasonableness in the performance and enforcement of an agreement by the party
seeking enforcement of the contract;


 

















 


15.5.requiring
consideration of the materiality of (i) a breach and (ii) the
consequences of the breach to the party seeking enforcement;


 


15.6.requiring
consideration of the impracticability or impossibility of performance at the
time of attempted enforcement; and


 


15.7.affording defenses
based upon the unconscionability of the enforcing party’s conduct after the
parties have entered into the contract.


 


ARTICLE
XVIOther Common Qualifications. 
Each of our opinions is subject to the effect of rules of law that:


 


16.1.limit or affect the
enforcement of provisions of a contract that purport to waive, or to require
waiver of, the obligations of good faith, fair dealing, diligence and
reasonableness;


 


16.2.provide that forum
selection clauses in contracts are not necessarily binding on the court(s) in
the forum selected;


 


16.3.limit the
availability of a remedy under certain circumstances where another remedy has
been elected;


 


16.4.provide a time
limitation after which a remedy may not be enforced;


 


16.5.limit the right of a
creditor to use force or cause a breach of the peace in enforcing rights;


 


16.6.relate to the sale
or disposition of collateral or the requirements of a commercially reasonable
sale;


 


16.7.limit the
enforceability of provisions releasing, exculpating or exempting a party from,
or requiring indemnification of a party for, liability for its own action or
inaction, to the extent the action or inaction involves negligence,
recklessness, willful misconduct, unlawful conduct, violation of public policy
or litigation against another party determined adversely to such party;


 


16.8.may, where less than
all of a contract may be unenforceable, limit the enforceability of the balance
of the contract to circumstances in which the unenforceable portion is not an
essential part of the agreed exchange;


 


16.9.govern and afford
judicial discretion regarding the determination of damages and entitlement to
attorneys’ fees and other costs; or


 


16.10.may permit a party
that has materially failed to render or offer performance required by the
contract to cure that failure unless (i) permitting a cure would
unreasonably hinder the aggrieved party from making substitute arrangements for
performance, or (ii) it was important in the circumstances to the
aggrieved party that performance occur by the date stated in the contract.


 


ARTICLE
XVIIReferenced Provision Qualification. 
In addition, our opinions, insofar as they relate to the validity,
binding effect or enforceability of a provision in the Purchase Agreement
requiring the Partnership to perform its obligations under, or to cause any
other person to perform its


 


A-2

















 


obligations under, any provision (a “Referenced Provision”) of
the Purchase Agreement or stating that any action will be taken as provided in
or in accordance with any provision (also a “Referenced Provision”) of
the Purchase Agreement, are subject to the same qualifications as the
corresponding opinion in this letter relating to the validity, binding effect
and enforceability of such Referenced Provision.  Requirements in the Purchase Agreement that provisions therein
may only be waived or amended in writing may not be enforceable to the extent
that an oral agreement or an implied agreement by trade practice or course of
conduct has been created modifying any such provision.


 


A-3

















 


EXHIBIT 8.6.1


 


ScheduleB


 


Assumptions


 


For purposes of our
letter, we have relied, without investigation, upon each of the following
assumptions:


 


1.                                       The
Partnership has the requisite title and rights to any property involved in the
transactions effected under the Purchase Agreement (herein called the “Transactions”).


 


ARTICLE
XVIIIThe Purchase Agreement constitute valid and binding obligations of yours
and are enforceable against you in accordance with their terms (subject to
qualifications, exclusions and other limitations similar to those applicable to
our letter).


 


ARTICLE
XIXYou have satisfied those legal requirements that are applicable to you to
the extent necessary to entitle you to enforce the Purchase Agreement against
the Partnership.


 


ARTICLE
XXEach document submitted to us for review is accurate and complete, each such document
that is an original is authentic, each such document that is a copy conforms to
an authentic original, and all signatures (other than those of or on behalf of
the Partnership) on each such document are genuine.


 


ARTICLE
XXIThere has not been any mutual mistake of fact or misunderstanding, fraud,
duress or undue influence.


 


ARTICLE
XXIIThe conduct of the parties to the Purchase Agreement has complied with any
requirement of good faith, fair dealing and conscionability.


 


ARTICLE
XXIIIYou have acted in good faith and without notice of any defense against the
enforcement of any rights created by, or adverse claim to any property or
security interest transferred or created as part of, the Transactions.


 


ARTICLE
XXIVThere are no agreements or understandings among the parties, written or
oral, and there is no usage of trade or course or prior dealing among the
parties that would, in either case, define, supplement or qualify the terms of
the Purchase Agreement.


 


ARTICLE
XXVThe constitutionality or validity of a relevant statute, rule, regulation or
agency action is not in issue.


 


ARTICLE
XXVIAll parties to the Transactions will act in accordance with, and will
refrain from taking any action that is forbidden by, the terms and conditions
of the Purchase Agreement.


 


ARTICLE
XXVIIAll agreements other than the Purchase Agreement (if any) with respect to
which we have 


 

















 


provided
advice in our letter or reviewed in connection with our letter would be
enforced as written.


 


ARTICLE
XXVIIIThe Partnership will not in the future take any discretionary action
(including a decision not to act) permitted under the Purchase Agreement that
would result in a violation of law or constitute a breach or default under any
other agreements or court orders to which the Partnership may be subject.


 


ARTICLE
XXIXThe Partnership has obtained (and will in the future obtain) all permits
and governmental approvals required, and has taken (and will in the future
take) all actions required, relevant to the consummation of the Transactions or
performance of the Purchase Agreement.


 


ARTICLE
XXXAll information required to be disclosed in connection with any consent or
approval by the Partnership’s general partner or partners (or similar governing
bodies) and all other information required to be disclosed in connection with
any issue relevant to our opinions has in fact been fully and fairly disclosed
to all persons to whom it is required to be disclosed.


 


B-2

















 


EXHIBIT 8.6.1


 


Schedule
C


 


Excluded
Law and Legal Issues


 


None of the opinions or
advice contained in our letter covers or otherwise addresses any of the
following laws, regulations or other governmental requirements or legal issues:


 


2.                                       Federal
securities laws and regulations (including the Investment Company Act of 1940
and all other laws and regulations administered by the United States Securities
and Exchange Commission), state “Blue Sky” laws and regulations, and laws and
regulations relating to commodity (and other) futures and indices and other
similar instruments;


 


ARTICLE
XXXIpension and employee benefit laws and regulations (e.g., ERISA);


 


ARTICLE
XXXIIFederal and state antitrust and unfair competition laws and regulations;


 


ARTICLE
XXXIIIFederal and state laws and regulations concerning filing and notice
requirements other than requirements applicable to charter-related documents
such as a certificate of merger;


 


ARTICLE
XXXIVcompliance with fiduciary duty requirements;


 


ARTICLE
XXXVthe statues and ordinances, the administrative decisions and the rules and
regulations of counties, towns, municipalities and special political
subdivisions (whether created or enabled through legislative action at the
Federal, state or regional level — e.g., water agencies, joint power districts,
turnpike and tollroad authorities, rapid transit districts or authorities, and
port authorities) and judicial decisions to the extent that they deal with any
of the foregoing;


 


ARTICLE
XXXVIthe characterization of a transaction as one involving the creation of a
lien on real property or a security interest in personal property, the
characterization of a contract as one in a form sufficient to create a lien or
a security interest, the creation, attachment, perfection, priority or
enforcement of a lien on real property or a security interest in personal property
or matters involving ownership or title to any real or personal property;


 


ARTICLE
XXXVIIfraudulent transfer and fraudulent conveyance laws;


 


ARTICLE
XXXVIIIFederal and state environmental laws and regulations;


 


ARTICLE
XXXIXFederal and state land use and subdivision laws and regulations;


 


ARTICLE
XLFederal and state tax laws and regulations;


 


ARTICLE
XLIFederal patent, trademark and copyright, state trademark, and other Federal
and state intellectual


 

















 


property
laws and regulations;


 


ARTICLE
XLIIFederal and state racketeering laws and regulations (e.g., RICO);


 


ARTICLE
XLIIIFederal and state health and safety laws and regulations (e.g., OSHA);


 


ARTICLE
XLIVFederal and state labor laws and regulations;


 


ARTICLE
XLVFederal and state laws, regulations and policies concerning
(i) national and local emergency, (ii) possible judicial deference to
acts of sovereign states, and (iii) criminal and civil forfeiture laws;


 


ARTICLE
XLVIother Federal and state statutes of general application to the extent they
provide for criminal prosecution (e.g., mail fraud and wire fraud statutes);


 


ARTICLE
XLVIIany laws, regulations, directives and executive orders that prohibit or
limit the enforceability of obligations based on attributes of the party
seeking enforcement (e.g., the Trading with the Enemy Act and the International
Emergency Economic Powers Act); and


 


ARTICLE
XLVIIIthe effect of any law, regulation or order which hereafter becomes
effective.


 


We have not undertaken
any research for purposes of determining whether the Partnership or any of the
Transactions which may occur in connection with the Purchase Agreement is
subject to any law or other governmental requirement other than to those laws
and requirements which in our experience would generally be recognized as
applicable in the absence of research by lawyers in New York, and none of our
opinions covers any such law or other requirement unless (i) one of our
Designated Transaction Lawyers had actual knowledge of its applicability at the
time our letter was delivered on the date it bears and (ii) it is not
excluded from coverage by other provisions in our letter or in any Schedule to
our letter.


 


C-2

















 


EXHIBIT 8.6.2


 


Schedule D


 


Excluded Provisions


 


None of the opinions in the letter to which this Schedule is attached
covers or otherwise addresses any of the following types of provisions which
may be contained in the Purchase Agreement:


 


3.                                       Covenants
not to compete, including without limitation covenants not to interfere with
business or employee relations, covenants not to solicit customers, and
covenants not to solicit or hire employees.


 


ARTICLEXLIXIndemnification for
negligence, willful misconduct or other wrongdoing or strict product liability
or any indemnification for liabilities arising under securities laws.


 


ARTICLE
L Provisions mandating contribution towards judgments or settlements among
various parties.


 


ARTICLE LIWaivers of
(i) legal or equitable defenses, (ii) rights to damages, (iii) rights
to counter claim or set off, 
(iv) statutes of limitations, (v) rights to notice,
(vi) the benefits of statutory, regulatory, or constitutional rights,
unless and to the extent the statute, regulation, or constitution explicitly
allows waiver, (vii) broadly or vaguely stated rights, and (viii) other
benefits to the extent they cannot be waived under applicable law.


 


ARTICLE LIIProvisions providing
for forfeitures or the recovery of amounts deemed to constitute penalties, or
for liquidated damages, acceleration of future amounts due (other than
principal) without appropriate discount to present value, late charges,
prepayment charges, interest upon interest, and increased interest rates upon
default.


 


ARTICLE
LIIITime-is-of-the-essence clauses.


 


ARTICLE
LIVProvisions which provide a time limitation after which a remedy may not be
enforced.


 


ARTICLE
LVConfession of judgment clauses.


 


ARTICLE LVIAgreements to submit
to the jurisdiction of any particular court or other governmental authority
(either as to personal jurisdiction and subject matter jurisdiction);
provisions restricting access to


 

















 


courts; waiver of the right to
jury trial; waiver of service of process requirements which would otherwise be
applicable; and provisions otherwise purporting to affect the jurisdiction and
venue of courts.


 


ARTICLE LVIIProvisions that
attempt to change or waive rules of evidence or fix the method or quantum of
proof to be applied in litigation or similar proceedings.


 


ARTICLE LVIIIProvisions
appointing one party as an attorney-in-fact for an adverse party or providing
that the decision of any particular person will be conclusive or binding on
others.


 


ARTICLE LIXProvisions
purporting to limit rights of third parties who have not consented thereto or
purporting to grant rights to third parties.


 


ARTICLE LXProvisions which
purport to award attorneys’ fees solely to one party.


 


ARTICLE LXIArbitration
agreements.


 


ARTICLE LXIIProvisions
purporting to create a trust or constructive trust without compliance with
applicable trust law.


 


ARTICLE LXIIIProvisions
relating to (i) insurance coverage requirements and (ii) the
application of insurance proceeds and condemnation awards.


 


ARTICLE LXIVProvisions that
provide for the appointment of a receiver.


 


ARTICLE LXVProvisions or
agreements regarding proxies, shareholders agreements, shareholder voting
rights, voting trusts, and the like.


 


ARTICLE LXVIConfidentiality
agreements.


 


ARTICLE LXVIIProvisions in the
Purchase Agreement requiring the Partnership to perform its obligations under,
or to cause any other person to perform its obligations under, or stating that
any action will be taken as provided in or in accordance with, any agreement or
other document.


 


ARTICLE LXVIIIProvisions, if
any, which are contrary to the public policy of any jurisdiction.


 


2

















 


EXHIBIT 8.6.2


 


	
  

  	
                  
       , 2003

  	
   

  
	
   

  	
   

  	
   

  
	
  Citigroup Venture Capital Partners, L.P.

  	
   

  
	
  CVC Executive Fund LLC

  	
   

  
	
  CVC/SSB Employee Fund, L.P.

  	
   

  
	
  Gentlemen:

  	
   

  



 


I am a member of the New York bar and Director and Associate General
Counsel of the New York Branch of BNP PARIBAS, a banking corporation organized
under the laws of the Republic of France (“BNP PARIBAS”) and, in such capacity,
I am delivering this opinion in connection with the execution and delivery by
BNP PARIBAS, of the Stock Purchase Agreement dated as of April 15, 2003 (the “Purchase
Agreement”), by and among Euramax International, Inc. (“Euramax”),
Citigroup Venture Capital Partners, L.P. (the “Fund”), CVC Executive
Fund LLC (the ”Executive Fund”), CVC/SSB Employee Fund, L.P. (the “Employee
Fund” and together with the Fund and the Executive Fund, the “Buyers”
or “you”), CVC European Equity Partners, L. P., BNP PARIBAS and certain
other stockholders of Euramax, pursuant to section 8.6 of the Purchase
Agreement.


 


Subject to the assumptions, qualifications, exclusions and other
limitations which 


 


3

















 


are identified in this letter and in the schedules attached to this
letter, I  advise you that:


 


1.               BNP PARIBAS is a
corporation duly organized and validly existing under the laws of the Republic
of France.  BNP PARIBAS is duly licensed
to maintain the New York Branch and the New York Branch has the power and
authority under such license to carry on a banking business in the State of New
York and is duly established and existing under the laws of the State of New
York.  BNP PARIBAS is the successor by
merger to Banque Paribas.


 


2.               BNP PARIBAS has the
corporate power to enter into and perform its obligations under the Purchase
Agreement.


 


3.               The execution,
delivery and performance of the Purchase Agreement by BNP PARIBAS has been
authorized by all necessary corporate action.


 


4.               BNP PARIBAS has
duly executed and delivered the Purchase Agreement.


 


5.               The execution,
delivery and performance of the Purchase Agreement by BNP PARIBAS does not
violate its certificate of incorporation.


 


6.               The Purchase
Agreement is a valid and binding obligation of BNP PARIBAS and is enforceable
against BNP PARIBAS in accordance with its terms.


 


In preparing this letter, I have relied without any independent
verification upon the assumptions recited in Schedule B to this
letter and upon:  (i) information
contained in certificates obtained from governmental authorities;
(ii) factual information represented to be true in the Purchase Agreement;
(iii) factual information provided to me by officers of BNP PARIBAS and
contained in corporate records; and (iv) factual information I have
obtained from such other sources as I have deemed reasonable.  I have assumed without investigation that
there has been no relevant change or development between the dates as of which
the information cited


 


4

















 


in the preceding sentence was given and the date of this letter and
that the information upon which we have relied is accurate and does not omit
disclosures necessary to prevent such information from being misleading.


 


While I have not conducted any independent investigation to determine
facts upon which our opinions are based or to obtain information about which
this letter advises you, I confirm that I do not have any actual knowledge
which has caused me to conclude that my reliance and assumptions cited in the
preceding paragraph are unwarranted or that any information supplied in this
letter is wrong.  The term “actual
knowledge” whenever it is used in this letter means the conscious awareness
at the time this letter is delivered on the date it bears by the following
lawyer who has had significant involvement with negotiation or preparation of
the Purchase Agreement  (herein called “Designated
Transaction Lawyer”): Kenneth L. Spangler.


 


My advice on every legal issue addressed in this letter is based
exclusively on the internal law of New York and the federal law of the United
States.  We advise you that issues
addressed by this letter may be governed in whole or in part by other laws, but
we express no opinion as to whether any relevant difference exists between the
laws upon which our opinions are based and any other laws which may actually govern.  Our opinions are subject to all
qualifications in Schedule A and do not cover or otherwise address any
law or legal issue which is identified in the attached Schedule C or any
provision in the Purchase Agreement of any type identified in Schedule D.  Provisions in the Purchase Agreement which
are not excluded by 


 


5

















 


Schedule D or any other part of this letter or
its attachments are called the “Relevant Agreement Terms.”


 


Our advice on each legal issue addressed in this letter represents our
opinion as to how that issue would be resolved were it to be considered by the
highest court of the jurisdiction upon whose law our opinion on that issue is
based.  The manner in which any
particular issue would be treated in any actual court case would depend in part
on facts and circumstances particular to the case, and this letter is not
intended to guarantee the outcome of any legal dispute which may arise in the
future.  It is possible that some
Relevant Agreement Terms may not prove enforceable for reasons other than those
cited in this letter should an actual enforcement action be brought, but
(subject to all the exceptions, qualifications, exclusions and other
limitations contained in this letter) such unenforceability would not in our
opinion prevent you from realizing the principal benefits purported to be
provided by the Relevant Agreement Terms.


 


This letter speaks as of the time of its delivery on the date it bears.
We do not assume any obligation to provide you with any subsequent opinion or
advice by reason of any fact about which our Designated Transaction Lawyer did
not have actual knowledge at that time, by reason of any change subsequent to
that time in any law covered by any of our opinions, or for any other
reason.  The attached schedules are an
integral part of this letter, and any term defined in this letter or any
schedule has that defined meaning wherever it is used in this letter or in any
schedule to this letter.


 


6

















 


You may rely upon this letter only for the purpose served by the
provision in the Purchase Agreement cited in the initial paragraph of this
letter in response to which it has been delivered.  Without my written consent: (i) no person other than you may
rely on this letter for any purpose; (ii) this letter may not be cited or
quoted in any financial statement, prospectus, private placement memorandum or
other similar document; (iii) this letter may not be cited or quoted in
any other document or communication which might encourage reliance upon this
letter by any person or for any purpose excluded by the restrictions in this
paragraph; and (iv) copies of this letter may not be furnished to anyone
for purposes of encouraging such reliance.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  Kenneth L. Spangler

  
	
   

  	
  Director and Associate General Counsel

  



 


7

















 


EXHIBIT 8.6.2


 


Schedule A


 


General Qualifications


 


All of the opinions (“our opinions”) in the letter to which this
Schedule is attached (“our letter”) are subject to each of the
qualifications set forth in this Schedule.


 


ARTICLE LXIXBankruptcy and
Insolvency Exception.  Each of our
opinions is subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws.  This exception includes:


 


69.1.the Federal
Bankruptcy Code and thus comprehends, among others, matters of turn-over,
automatic stay, avoiding powers, fraudulent transfer, preference, discharge,
conversion of a non-recourse obligation into a recourse claim, limitations on
ipso facto and anti-assignment clauses and the coverage of pre-petition
security agreements applicable to property acquired after a petition is filed;


 


69.2.all other Federal
and state bankruptcy, insolvency, reorganization, receivership, moratorium,
arrangement and assignment for the benefit of creditors laws that affect the
rights of creditors generally or that have reference to or affect only
creditors of specific types of debtors;


 


69.3.state fraudulent
transfer and conveyance laws; and


 


69.4.judicially developed
doctrines in this area, such as substantive consolidation of entities and
equitable subordination.


 


ARTICLE
LXXEquitable Principles Limitation. 
Each of our opinions is subject to the effect of general principles of
equity, whether applied by a court of law or equity.  This limitation includes principles:


 


70.1.governing the
availability of specific performance, injunctive relief or other equitable
remedies, which generally place the award of such remedies, subject to certain
guidelines, in the discretion of the court to which application for such relief
is made;


 


70.2.affording equitable
defenses (e.g., waiver, laches and estoppel) against a party seeking
enforcement;


 


70.3.requiring good faith
and fair dealing in the performance and enforcement of a contract by the party
seeking its enforcement;


 


70.4.requiring
reasonableness in the performance and enforcement of an agreement by the party
seeking enforcement of the contract;


 

















 


70.5.requiring consideration of the materiality of (i) a breach
and (ii) the consequences of the breach to the party seeking enforcement;


 


70.6.requiring
consideration of the impracticability or impossibility of performance at the
time of attempted enforcement; and


 


70.7.affording defenses
based upon the unconscionability of the enforcing party’s conduct after the
parties have entered into the contract.


 


ARTICLE
LXXIOther Common Qualifications. 
Each of our opinions is subject to the effect of rules of law that:


 


71.1.limit or affect the
enforcement of provisions of a contract that purport to waive, or to require
waiver of, the obligations of good faith, fair dealing, diligence and
reasonableness;


 


71.2.provide that forum
selection clauses in contracts are not necessarily binding on the court(s) in
the forum selected;


 


71.3.limit the
availability of a remedy under certain circumstances where another remedy has
been elected;


 


71.4.provide a time
limitation after which a remedy may not be enforced;


 


71.5.limit the right of a
creditor to use force or cause a breach of the peace in enforcing rights;


 


71.6.relate to the sale
or disposition of collateral or the requirements of a commercially reasonable
sale;


 


71.7.limit the
enforceability of provisions releasing, exculpating or exempting a party from,
or requiring indemnification of a party for, liability for its own action or
inaction, to the extent the action or inaction involves negligence,
recklessness, willful misconduct, unlawful conduct, violation of public policy
or litigation against another party determined adversely to such party;


 


71.8.may, where less than
all of a contract may be unenforceable, limit the enforceability of the balance
of the contract to circumstances in which the unenforceable portion is not an
essential part of the agreed exchange;


 


71.9.govern and afford
judicial discretion regarding the determination of damages and entitlement to
attorneys’ fees and other costs; or


 


71.10.may permit a party
that has materially failed to render or offer performance required by the
contract to cure that failure unless (i) permitting a cure would
unreasonably hinder the aggrieved party from making substitute arrangements for
performance, or (ii) it was important in the circumstances to the
aggrieved party that performance occur by the date stated in the contract.


 


ARTICLE
LXXIIReferenced Provision Qualification.  In addition, our opinions, insofar as they relate to the
validity, binding effect or enforceability of a provision in the Purchase
Agreement requiring a party to perform its obligations under, or to cause any
other person to perform its obligations 


 


A-2

















 


under,
any provision (a “Referenced Provision”) of the Purchase Agreement or
stating that any action will be taken as provided in or in accordance with any
provision (also a “Referenced Provision”) of the Purchase Agreement, are
subject to the same qualifications as the corresponding opinion in this letter
relating to the validity, binding effect and enforceability of such Referenced
Provision.  Requirements in the Purchase
Agreement that provisions therein may only be waived or amended in writing may
not be enforceable to the extent that an oral agreement or an implied agreement
by trade practice or course of conduct has been created modifying any such
provision.


 


A-3

















 


EXHIBIT 8.6.2


 


Schedule B


 


Assumptions


 


For purposes of our letter, we have relied, without investigation, upon
each of the following assumptions:


 


4.                                       BNP
PARIBAS has the requisite title and rights to any property involved in the
transactions effected under the Purchase Agreement (herein called the “Transactions”).


 


ARTICLE
LXXIIIThe Purchase Agreement constitute valid and binding obligations of yours
and are enforceable against you in accordance with their terms (subject to
qualifications, exclusions and other limitations similar to those applicable to
our letter).


 


ARTICLE
LXXIVYou have satisfied those legal requirements that are applicable to you to
the extent necessary to entitle you to enforce the Purchase Agreement against
BNP PARIBAS.


 


ARTICLE
LXXVEach document submitted to us for review is accurate and complete, each
such document that is an original is authentic, each such document that is a
copy conforms to an authentic original, and all signatures (other than those of
or on behalf of the Partnership) on each such document are genuine.


 


ARTICLE
LXXVIThere has not been any mutual mistake of fact or misunderstanding, fraud,
duress or undue influence.


 


ARTICLE
LXXVIIThe conduct of the parties to the Purchase Agreement has complied with
any requirement of good faith, fair dealing and conscionability.


 


ARTICLE
LXXVIIIYou have acted in good faith and without notice of any defense against
the enforcement of any rights created by, or adverse claim to any property or
security interest transferred or created as part of, the Transactions.


 


ARTICLE
LXXIXThere are no agreements or understandings among the parties, written or
oral, and there is no usage of trade or course or prior dealing among the
parties that would, in either case, define, supplement or qualify the terms of
the Purchase Agreement.


 


ARTICLE
LXXXThe constitutionality or validity of a relevant statute, rule, regulation
or agency action is not in issue.


 


ARTICLE
LXXXIAll parties to the Transactions will act in accordance with, and will
refrain from taking any action that is forbidden by, the terms and conditions
of the Purchase Agreement.


 

















 


ARTICLE
LXXXIIAll agreements other than the Purchase Agreement (if any) with respect to
which we have provided advice in our letter or reviewed in connection with our
letter would be enforced as written.


 


ARTICLE
LXXXIIIBNP PARIBAS will not in the future take any discretionary action
(including a decision not to act) permitted under the Purchase Agreement that
would result in a violation of law or constitute a breach or default under any
other agreements or court orders to which the Partnership may be subject.


 


ARTICLE
LXXXIVBNP PARIBAS has obtained (and will in the future obtain) all permits and
governmental approvals required, and has taken (and will in the future take)
all actions required, relevant to the consummation of the Transactions or
performance of the Purchase Agreement.


 


ARTICLE
LXXXVAll information required to be disclosed in connection with any consent or
approval by BNP PARIBAS and all other information required to be disclosed in
connection with any issue relevant to our opinions has in fact been fully and
fairly disclosed to all persons to whom it is required to be disclosed.


 


B-2

















 


EXHIBIT 8.6.2


 


Schedule C


 


Excluded Law And Legal Issues


 


None of the opinions or advice contained in our letter covers or
otherwise addresses any of the following laws, regulations or other
governmental requirements or legal issues:


 


5.                                       Federal
securities laws and regulations (including the Investment Company Act of 1940
and all other laws and regulations administered by the United States Securities
and Exchange Commission), state “Blue Sky” laws and regulations, and laws and
regulations relating to commodity (and other) futures and indices and other
similar instruments;


 


ARTICLE
LXXXVIpension and employee benefit laws and regulations (e.g., ERISA);


 


ARTICLE
LXXXVIIFederal and state antitrust and unfair competition laws and regulations;


 


ARTICLE
LXXXVIIIFederal and state laws and regulations concerning filing and notice
requirements other than requirements applicable to charter–related documents
such as a certificate of merger;


 


ARTICLE
LXXXIXcompliance with fiduciary duty requirements;


 


ARTICLE
XCthe statues and ordinances, the administrative decisions and the rules and
regulations of counties, towns, municipalities and special political
subdivisions (whether created or enabled through legislative action at the
Federal, state or regional level — e.g., water agencies, joint power districts,
turnpike and tollroad authorities, rapid transit districts or authorities, and
port authorities) and judicial decisions to the extent that they deal with any
of the foregoing;


 


ARTICLE
XCIthe characterization of a transaction as one involving the creation of a
lien on real property or a security interest in personal property, the
characterization of a contract as one in a form sufficient to create a lien or
a security interest, the creation, attachment, perfection, priority or
enforcement of a lien on real property or a security interest in personal
property or matters involving ownership or title to any real or personal
property;


 


ARTICLE
XCIIfraudulent transfer and fraudulent conveyance laws;


 


ARTICLE
XCIIIFederal and state environmental laws and regulations;


 


ARTICLE
XCIVFederal and state land use and subdivision laws and regulations;


 


ARTICLE
XCVFederal and state tax laws and regulations;


 

















 


ARTICLE
XCVIFederal patent, trademark and copyright, state trademark, and other Federal
and state intellectual property laws and regulations;


 


ARTICLE
XCVIIFederal and state racketeering laws and regulations (e.g., RICO);


 


ARTICLE
XCVIIIFederal and state health and safety laws and regulations (e.g., OSHA);


 


ARTICLE
XCIXFederal and state labor laws and regulations;


 


ARTICLE
CFederal and state laws, regulations and policies concerning (i) national
and local emergency, (ii) possible judicial deference to acts of sovereign
states, and (iii) criminal and civil forfeiture laws;


 


ARTICLE
CIother Federal and state statutes of general application to the extent they
provide for criminal prosecution (e.g., mail fraud and wire fraud statutes);


 


ARTICLE
CIIany laws, regulations, directives and executive orders that prohibit or
limit the enforceability of obligations based on attributes of the party
seeking enforcement (e.g., the Trading with the Enemy Act and the International
Emergency Economic Powers Act); and


 


ARTICLE
CIIIthe effect of any law, regulation or order which hereafter becomes
effective.


 


I have not undertaken any research for purposes of determining whether
the Partnership or any of the Transactions which may occur in connection with
the Purchase Agreement is subject to any law or other governmental requirement
other than to those laws and requirements which in our experience would
generally be recognized as applicable in the absence of research by lawyers in
New York, and none of our opinions covers any such law or other requirement
unless (i) one of the Designated Transaction Lawyer had actual knowledge
of its applicability at the time our letter was delivered on the date it bears
and (ii) it is not excluded from coverage by other provisions in our letter
or in any Schedule to our letter.


 


C-2

















 


Schedule D


Excluded Provisions


 


6.                                       None
of the opinions in the letter to which this Schedule is attached covers or
otherwise addresses any of the following types of provisions which may be
contained in the Purchase Agreement:.


 


ARTICLE
CIVCovenants not to compete, including without limitation covenants not to
interfere with business or employee relations, covenants not to solicit
customers, and covenants not to solicit or hire employees.


 


ARTICLE
CVIndemnification for negligence, willful misconduct or other wrongdoing or
strict product liability or any indemnification for liabilities arising under
securities laws.


 


ARTICLE
CVIProvisions mandating contribution towards judgments or settlements among
various parties.


 


ARTICLE
CVIIWaivers of (i) legal or equitable defenses, (ii) rights to
damages, (iii) rights to counter claim or set off,  (iv) statutes of limitations, (v) rights to notice,
(vi) the benefits of statutory, regulatory, or constitutional rights,
unless and to the extent the statute, regulation, or constitution explicitly
allows waiver, (vii) broadly or vaguely stated rights, and
(viii) other benefits to the extent they cannot be waived under applicable
law.


 


ARTICLE
CVIIIProvisions providing for forfeitures or the recovery of amounts deemed to
constitute penalties, or for liquidated damages, acceleration of future amounts
due (other than principal) without appropriate discount to present value, late
charges, prepayment charges, interest upon interest, and increased interest
rates upon default.


 


ARTICLE
CIXTime-is-of-the-essence clauses.


 


ARTICLE
CXProvisions which provide a time limitation after which a remedy may not be
enforced.


 


ARTICLE
CXIConfession of judgment clauses.


 


ARTICLE
CXIIAgreements to submit to the jurisdiction of any particular court or other
governmental authority (either as to personal jurisdiction and subject matter
jurisdiction); provisions restricting access to courts; waiver of the right to
jury trial; waiver of service of process requirements which would otherwise be
applicable; and provisions otherwise purporting to affect the jurisdiction and
venue of courts.


 


ARTICLE
CXIIIProvisions that attempt to change or waive rules of evidence or fix the
method or quantum of


 

















 


proof
to be applied in litigation or similar proceedings.


 


ARTICLE
CXIVProvisions appointing one party as an attorney-in-fact for an adverse party
or providing that the decision of any particular person will be conclusive or
binding on others.


 


ARTICLE
CXVProvisions purporting to limit rights of third parties who have not
consented thereto or purporting to grant rights to third parties.


 


ARTICLE
CXVIProvisions which purport to award attorneys’ fees solely to one party.


 


ARTICLE
CXVIIArbitration agreements.


 


ARTICLE
CXVIIIProvisions purporting to create a trust or constructive trust without
compliance with applicable trust law.


 


ARTICLE
CXIXProvisions relating to (i) insurance coverage requirements and
(ii) the application of insurance proceeds and condemnation awards.


 


ARTICLE
CXXProvisions that provide for the appointment of a receiver.


 


ARTICLE
CXXIProvisions or agreements regarding proxies, shareholders agreements,
shareholder voting rights, voting trusts, and the like.


 


ARTICLE
CXXIIConfidentiality agreements.


 


ARTICLE
CXXIIIProvisions in the Purchase Agreement requiring BNP PARIBAS to perform its
obligations under, or to cause any other person to perform its obligations
under, or stating that any action will be taken as provided in or in accordance
with, any agreement or other document.


 


ARTICLE
CXXIVProvisions, if any, which are contrary to the public policy of any
jurisdiction.