**Exhibit 10.1**

 

 

STOCK PURCHASE AGREEMENT

 

by and among

 

CITIGROUP VENTURE CAPITAL EQUITYPARTNERS, L.P.

 

CVC EXECUTIVE FUND LLC

 

CVC/SSB EMPLOYEE FUND, L.P.

 

EURAMAX INTERNATIONAL, INC.

 

and

 

THE STOCKHOLDERS OFEURAMAX INTERNATIONAL, INC.NAMED HEREIN

 

 

Dated April 15, 2003

 

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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 CapitalPartners, L.P.CVC Executive Fund LLCCVC/SSB Employee Fund, L.P.

                      , 2003

 

STOCKPURCHASE AGREEMENT

 

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

 

RECITALS

 

WHEREAS, the Company hasissued and outstanding as of the date hereof 437,695.64 shares of Class Avoting 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 $1.00per share (the “Class B Common” and together with the Class A Common,the “Company Stock”) and no other capital stock.

 

WHEREAS, Buyer desires topurchase from each Investor and each of the Investors desires to sell to Buyershares of Company Stock, on the terms and subject to the conditions set forthin this Agreement.

 

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

 

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

 

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conditions set forth in thisAgreement.

 

AGREEMENTS

 

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

 

# ARTICLE ITHE TRANSACTION

 

## 1.1.          Purchaseof Company Stock.  At theClosing referred to in Section 2.1 below, each Stockholder will sell and assignto Buyer, and Buyer will purchase from such Stockholder, the shares of CompanyStock set forth opposite such Stockholder’s name on Exhibit 1.1 attachedhereto, 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 aresult of Buyer’s ownership of such Company Stock (“Permitted Encumbrances”).  The shares of Company Stock to be purchasedhereunder will be allocated for purchase among each Buyer by the Fund prior toClosing.

 

## 1.2.          PurchasePrice Payment.

 

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

 

### (b)           Payments.  At the Closing, Buyer shall pay to eachStockholder the product of the Per Share Purchase Price and the number ofshares of Company Stock set forth opposite such Stockholder’s name on Exhibit1.1 attached hereto (the “Purchase Price Payment”), by wire transferof immediately available funds to the United States bank account that has beendesignated for each such Stockholder by the Stockholders’ Representative (asdefined in Section 1.4 hereof) to Buyer at least three days prior to theClosing.

 

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

 

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

 

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

 

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

 

### (b)           to receive, hold, and deliver to Buyerthe certificates evidencing shares of Company Stock accompanied by executedstock powers and any other documents relating thereto on behalf of suchStockholder;

 

### (c)           to execute and deliver all ancillaryagreements, certificates, statements, notices, approvals, extensions, waivers,undertakings, amendments and other documents required or permitted to be givenin connection with the consummation of the transactions contemplated by thisAgreement;

 

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

 

### (e)           to terminate this Agreement if theStockholders are entitled to do so;

 

### (f)            to institute, defend, compromise or settleany indemnification claims pursuant to Article XI of this Agreement (excludingindemnification claims under Section 11.2(b) hereof (relating torepresentations and warranties set forth in Article IV hereof) orSection 7.14 hereof);

 

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### (g)           to give and receive all notices andcommunications to be given or received under this Agreement and to receiveservice 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 thisAgreement may be taken by the Stockholders’ Representative and to do or refrainfrom doing any further act or deed on behalf of such Stockholder whichStockholders’ Representative deems necessary or appropriate in his solediscretion relating to the subject matter of this Agreement as fully andcompletely as such Stockholder could do if personally present;

 

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

 

The death or incapacityof any Stockholder shall not terminate the agency and power of attorney grantedhereby to the Stockholders’ Representative. The appointment of Stockholders’ Representative shall be deemed coupledwith an interest and shall be irrevocable and, notwithstanding the proviso atthe end of the foregoing paragraph, Buyer and any other person may conclusivelyand absolutely rely, without inquiry, upon any action of Stockholders’Representative, as the action of Stockholders in all matters referred toherein.  All actions, decisions andinstructions of Stockholders’ Representative shall be conclusive and bindingupon all of the Stockholders and no Stockholder shall have any cause of actionagainst Buyer or Stockholders’ Representative for any action taken or not takenby Stockholders’ Representative in his role as such, except for causes ofaction against the Stockholders’ Representative with respect to any action oromission taken or made fraudulently or in bad faith with respect to suchStockholder.

 

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

 

# ARTICLE IICLOSING

 

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

 

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EST on (i) the 30thday following the date hereof (or, if such day is not a business day, theimmediately succeeding business day), provided that (A) in no eventshall the Closing take place prior to the second business day following thesatisfaction 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 toSection 10.1(b), the Closing shall take place within three (3) Business Days ofthe 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’ Representativemay agree in writing (such time and date being referred to herein as the “ClosingDate”).  For financial accountingand tax purposes, to the extent permitted by Law, the Closing shall be deemedto have become effective as of 11:59 p.m. on the Closing Date.

 

## 2.2.          ClosingDeliveries.

 

### (a)           Deliveries by Buyer to theStockholders.  At the Closing, Buyershall 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 (assuch term is defined in Section 9.3), delivered to the Stockholders’Representative; and

 

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

 

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

 

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

 

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

 

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

 

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#### (iv)          the legal opinions specified inSection 8.6 hereof;

 

#### (v)           the certificate required pursuant toSection 8.9 hereof; and

 

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

 

## 2.3.          Defaultby any Stockholder.  If theStockholders’ Representative or any Stockholder fails to deliver to Buyer atthe Closing any of the Company Stock (including by way of delivery of anyaffidavit of loss and indemnity in a form reasonably acceptable to the Companyand Buyer) to be sold by such Stockholder hereunder, such failure shall notrelieve any other Stockholder of any obligation hereunder, and if any suchfailure is by an Investor, Buyer may, at Buyer’s option (a) acquire theremaining shares of Company Stock contemplated to be acquired by Buyerhereunder; or (b) refuse to make such acquisition and thereby terminate all ofits obligations hereunder, in either case without prejudice to Buyer’s rightsagainst such defaulting Stockholders.

 

# ARTICLE IIIREPRESENTATIONS AND WARRANTIES OF THE COMPANY AND STOCKHOLDERS REGARDING THE COMPANY

 

Prior to the Closing theCompany represents and warrants to Buyer that, and from and after the Closingeach Stockholder severally represents and warrants to Buyer that to theKnowledge of that Stockholder (other than with respect to Section 3.5, whichrepresentation 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 asit now is being conducted.  The Companyis duly qualified to do business and is in good standing as a foreigncorporation in all jurisdictions where the nature of the property owned orleased by it or the nature of the business conducted by it makes suchqualification necessary, except where the failure to be so qualified or in goodstanding would not have a Material Adverse Effect.

 

## 3.2.          Authority.  The execution, delivery and performance bythe Company of this Agreement and the Ancillary Agreements to which the Companyis a party and the consummation by the Company of the transactions contemplatedhereby and thereby have been duly authorized by all necessary corporate actionon the part of the Company.  ThisAgreement has been, and each Ancillary Agreement to which the Company is aparty will be, duly and validly executed and delivered by the Company, to theextent a party thereto, and constitutes, and

 

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will constitute, the valid andbinding obligation of each of the Company, enforceable against the Company inaccordance with its respective terms.

 

## 3.3.          No Conflict.  The execution, delivery and performance bythe Company and each Stockholder of this Agreement and the Ancillary Agreementto which the Company or the Stockholders are parties thereto, and theconsummation by the Company and each Stockholder of the transactionscontemplated hereby and thereby does not and will not, with or without thegiving of notice or the lapse of time, or both, (w) violate any provisionof law, rule, or regulation to which the Company or any Subsidiary is subject,(x) violate any order, judgment, or decree applicable to the Company orany Subsidiary, (y) violate any provision of the certificate ofincorporation, bylaws or other corporate governance or organizational documentsof the Company or any Subsidiary, or (z) except as set forth on Schedule 3.3hereof, violate or result in a breach of or constitute a default (or an eventwhich 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, orresult in or permit the acceleration of the maturity or cancellation ofperformance of any obligation under, or result in the creation or imposition ofany Encumbrance of any nature whatsoever upon any assets or property or give toothers any interests or rights therein under, any indenture, deed of trust,mortgage, loan or credit agreement, license, permit, contract, lease, or otheragreement, instrument or commitment to which the Company or any Subsidiary is aparty or by which any of them may be bound or affected, except for any suchviolations that in the aggregate would not materially hinder or impair theconsummation of the transactions contemplated hereby and would not have aMaterial Adverse Effect.

 

## 3.4.          Consents.  Except as set forth on Schedule 3.4hereof, no consent, approval, or authorization of, or exemption by, or filingwith, any governmental authority or third party is required to be obtained ormade 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 aparty, or the taking by the Company of any other action contemplated hereby orthereby or the continuation after the Closing by the Company or any Subsidiaryof the businesses conducted prior to the Closing.

 

## 3.5.          Capitalization.  The authorized and outstanding capital stockof the Company as of the date hereof is set forth on Schedule 3.5hereof.  The Company Stock representsall of the issued and outstanding capital stock of the Company, and all of theoutstanding Company Stock is duly authorized, validly issued, fully paid, and non-assessable,was not issued in violation of the terms of any agreement or otherunderstanding binding upon any Stockholder or the Company, and was issued incompliance with all applicable federal and state securities or “blue-sky” lawsand regulations.  Except as set forth onSchedule 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 theCompany, or subscriptions, warrants, options, rights (including, withoutlimitation, preemptive rights), stock appreciation rights, phantom stockinterests, or other arrangements or commitments obligating the Company to issueor dispose of any of its respective equity securities or any ownership interesttherein (“Equity Rights”).  Theconsummation of the transactions contemplated hereby will not cause anyEncumbrances to be created or suffered on the Company Stock, other thanEncumbrances created by Buyer or Encumbrances resulting from the SecuritiesHolders Agreement referenced in Section 8.7 hereof or the Company’s 2003 EquityCompensation Plan (or grant agreements thereunder).  Schedule 3.5 sets forth as of the date hereof, withrespect to any Equity Rights, the total number of Equity Rights (and any sharesof capital stock issuable pursuant to such Equity Rights), the number of vestedand unvested Equity Rights, the number of Equity Rights that will accelerateunder the terms of the applicable grant or award, and the exercise prices orgrant prices of the for the Equity Rights. Since the date hereof, the Company has not awarded or granted any EquityRights.

 

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

 

# ARTICLE IVREPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS

 

Each of the Stockholdersseverally, but not jointly, hereby represents and warrants to the Buyer as toitself as follows:

 

## 4.1.          Ownershipof Stock.  Such Stockholder isthe beneficial and record owner of the Company Stock set forth opposite suchStockholder’s name on Exhibit 1.1 attached hereto, free and clear of allliens, security interests, security agreements, conditional sale or other titleretention agreements, leases, pledges, equities, proxies, claims, charges,mortgages, rights of first refusal, preemptive rights, restrictions,encumbrances, easements, covenants, assessments, attachments, licenses, optionsor title defects of any kind whatsoever (“Encumbrances”), except for anyEncumbrances imposed by the Shareholders Agreement or arising under federal orstate securities laws.  Such Stockholderhas all requisite legal right, power and authority to transfer such shares ofCompany Stock to Buyer.  Uponconsummation of the purchases and exchanges contemplated hereby, Buyer willacquire 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.  Theexecution, delivery and performance by such Stockholder of this Agreement andthe Ancillary Agreements to which such Stockholder is a party and theconsummation by such Stockholder of the transactions contemplated hereby havebeen duly authorized by all necessary action on the part of suchStockholder.  If such Stockholder is alimited partnership or corporate body, such Stockholder is duly created andvalidly existing under the laws of the jurisdiction of its creation and has allrequisite limited partnership or corporate power and authority, as applicable,to carry on its business as it is now being conducted, to execute, deliver andperform this Agreement and the Ancillary Agreements to which it is a party, andto consummate the transactions contemplated hereby and thereby.   ThisAgreement has been, and each Ancillary Agreement to which such Stockholder is aparty will be, duly and validly executed and delivered by such Stockholder andconstitutes, and will constitute, the valid and binding obligation of each ofsuch Stockholder, enforceable against such Stockholder in accordance with itsrespective terms.

 

## 4.3.          No Conflict.  The execution, delivery and performance bysuch Stockholder of this Agreement and any Ancillary Agreement to which suchStockholder is party, and the consummation by such Stockholder of thetransactions contemplated hereby and thereby does not and will not, with orwithout the giving of notice or the lapse of time, or both, (w) violateany 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 suchStockholder (if such Stockholder is not an individual), or (z) violate orresult in a breach of or constitute a default (or an event which might, withthe 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 permitthe termination or amendment of any provision of, or result in or permit theacceleration of the maturity or cancellation of performance of any obligationunder, or result in the creation or imposition of any Encumbrance of any naturewhatsoever upon any assets or property or give to others any interests or rightstherein under any indenture, deed of trust, mortgage, loan or credit agreement,license, permit, contract, lease, or other agreement, instrument or commitmentto which such Stockholder is a party or by which such Stockholder may be boundor affected, except for any such violations that in the aggregate would notmaterially hinder or impair the ability of such Stockholder to perform itsobligations hereunder or the consummation of the transactions contemplatedhereby.

 

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

 

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brokerage commission, finder’sfee or other similar compensation in connection with the transactionscontemplated by this Agreement, except for CIBC World Markets to the extentprovided in the Engagement Letter.

 

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

 

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

 

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

 

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

 

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

 

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

 

# ARTICLE VREPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS

 

Each Stockholderseverally represents and warrants to the Buyer that, to the Knowledge of thatStockholder:

 

## 5.1.          SEC Documents; UndisclosedLiabilities.  The Company hasfiled all material reports, schedules, forms and registration statements withthe Securities and Exchange Commission (the “SEC”) required to be filedpursuant 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 January1, 1999 (collectively, and in each case including all exhibits and schedulesthereto and documents incorporated by reference therein, the “SEC Documents”).  As of their respective dates, the SECDocuments complied in all material respects with the requirements of theSecurities Act or the

 

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Exchange Act, as the case maybe, and the rules and regulations of the SEC promulgated thereunder applicableto such SEC Documents, and none of the SEC Documents (including any and allfinancial statements included therein) as of such dates contained any untruestatement of a material fact or omitted to state a material fact required to bestated therein or necessary in order to make the statements therein, in lightof the circumstances under which they were made, not misleading.  The consolidated financial statements of theCompany included in the SEC Documents (the “SEC Financial Statements”)complied as to form in all material respects with applicable accountingrequirements and the published rules and regulations of the SEC with respectthereto, have been prepared in accordance with GAAP (except as may be indicatedtherein or in the notes thereto and except, in the case of unauditedconsolidated quarterly statements, as permitted by Form 10-Q of the SEC)applied on a consistent basis during the periods involved and fairly present inall material respects the consolidated financial position of the Company andits consolidated Subsidiaries as of the respective dates thereof and theconsolidated results of their operations and cash flows for the respectiveperiods then ended (subject, in the case of unaudited quarterly statements, tonormal year-end audit adjustments and the absence of footnotes).  Exceptas set forth on Schedule 5.1 hereof, since December 27, 2002until the date hereof, neither the Company nor any of its Subsidiaries hasincurred any liabilities or obligations of any nature (whether accrued,absolute, contingent or otherwise) except (i) as and to the extent set forth onthe audited balance sheet of the Company and its Subsidiaries as of December27, 2002 (including the notes thereto), (ii) as incurred in connection with thetransactions contemplated by this Agreement, (iii) as incurred after December27, 2002 in the ordinary course of business and consistent with past practice,(iv) to the extent specifically described in the SEC Documents filed sinceDecember 27, 2002 but on or prior to the date hereof (the “Recent SECDocuments”), or (v) as would not, individually or in the aggregate, have aMaterial Adverse Effect.

 

## 5.2.          Absence of Certain Changes or Events.  Except as disclosed in the SEC Documentsfiled or press releases of the Company issued prior to the date hereof, orexcept as set forth on Schedule 5.2 hereof, the Company and theSubsidiaries have conducted the Company’s and its Subsidiaries’ businesses onlyin the ordinary course consistent with past practice and there has been noMaterial Adverse Effect.  Without limitingthe foregoing, except as set forth on Schedule 5.2 or as reflected inthe Recent SEC Documents, since December 27, 2002, neither the Company nor anySubsidiary 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 anychange or received any threat of any change in any of its relations with, orany loss or threat of loss of, any of the suppliers, clients, distributors,customers or employees that would, individually or in the aggregate, have aMaterial Adverse Effect, including any such loss or change which may resultfrom the transactions contemplated by this Agreement, (c) changed any method ofkeeping of their respective books of

 

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

 

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

 

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

 

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compliance by any Stockholderor the Company with the terms of this Agreement.

 

## 5.5.          Compliancewith Laws.  The Company and itsSubsidiaries have been and are in compliance with all applicable federal,state, local or foreign laws, rules and regulations currently in effect, exceptwhere the failure to comply therewith would not, individually or in theaggregate, have a Material Adverse Effect. The Company and its Subsidiaries possess and are in compliance with allgovernmental permits, registrations, certificates, licenses, authorizations,easements, leases and variances (“Permits”) necessary for the conduct ofthe Company’s and its Subsidiaries’ businesses as presently conducted, and willcontinue to possess and be in compliance with such Permits immediately afterthe Closing, and each of such Permits is and will be immediately after theClosing 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.          EnvironmentalMatters.  Except as disclosed onSchedule 5.6 hereof or in the SEC Documents:

 

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

 

### (b)           Since September 25, 1996, neither theCompany nor any Subsidiary has received any notice, citation, summons, order orcomplaint, and no penalty has been assessed or is pending or threatened by anythird party (including, without limitation, any governmental agency) withrespect to (i) the use or Release (as defined below) of any and hazardous ortoxic substances, wastes or materials, or any pollutants, contaminants, ordangerous materials regulated as such by Environmental Laws (“HazardousMaterials”) by or on behalf of the Company or its Subsidiaries, (ii)non-compliance with Environmental Laws or (iii) failure to hold or comply withEnvironmental Permits.  Since September25, 1996, neither the Company nor any Subsidiary has received any writtenclaims or demands or other notification that the Company or any Subsidiary isrequired by Environmental Law to conduct any material investigation, cleanup,remedial action or other response action of or with respect to HazardousMaterials.

 

### (c)           No Hazardous Materials have beenreleased, spilled, leaked, discharged,

 

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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 Subsidiarythat have resulted, or are reasonably likely to result, in remediationliabilities or obligations, except to the extent any such liabilities orobligations, individually or in the aggregate, would not have a MaterialAdverse Effect.

 

## 5.7.          Taxes.

 

### (a)           Except as set forth in Schedule5.7.1 hereof, (i) the Company and its Subsidiaries have timely filed withthe appropriate Taxing Authority all Tax Returns that they were required tofile 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 tobe true, correct and complete would not, individually or in the aggregate, havea Material Adverse Effect; and (iii) there are no liens for Taxes upon theCompany, any of its Subsidiaries, or their assets, except liens for currentTaxes not yet due and payable.  Exceptas set forth on Schedule 5.7.2 hereof, neither the Company nor any ofits Subsidiaries has granted any waiver of any statute of limitations withrespect 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 grossincome, or income as specially defined, or earnings, or profits, or selecteditems 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 kindwhatsoever, together with any interest and any penalties, additions to tax oradditional amounts imposed by any Taxing Authority on the Company or any of itsSubsidiaries; (ii) “Tax Return” means any material return, report,information return or other document (including any related or supportinginformation) filed or required to be filed with any Taxing Authority inconnection with the determination, assessment, or collection of any Taxes paidor payable by the Company or any of its Subsidiaries; and (iii) “TaxingAuthority” means any federal, state, local, or foreign governmental entityor other authority (individually or collectively).

 

### (c)           Except as set forth on Schedule5.7.3 hereof, there is no action, suit, proceeding, investigation, audit,claim, assessment or judgment now pending against the Company or any of itsSubsidiaries in respect of any Tax, and no notice of deficiency or proposedadjustment for any amount of Tax has been received from any TaxingAuthority.  No Taxing Authority withwhich the Company or any of its Subsidiaries does not file Tax Returns hasclaimed that such company is or may be subject to taxation by that TaxingAuthority.

 

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### (d)           There is no agreement or arrangementwith any person or entity (other than any tax sharing agreement exclusivelyamong the Company and its Subsidiaries) pursuant to which the Company or any ofits Subsidiaries would have an obligation with respect to Taxes of anotherperson or entity following the Closing.

 

### (e)           Except as set forth on Schedule5.7.4, neither the Company nor any of its Subsidiaries has ever been amember of an affiliated group of corporations (as that term is defined inSection 1504(a)(1) of the Code) other than the group of which the common parentis 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 Companyand its Subsidiaries) under Treasury Regulation § 1.1502-6 (or any similarprovision of state, local, or foreign law), or as a transferee or successor, bycontract, or otherwise.

 

### (f)            Except as disclosed on Schedule5.7.5 hereof, neither the Company nor any of its Subsidiaries is a party toany 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.          EmployeeBenefit Matters.

 

### (a)           Schedule 5.8.1 hereof listsall “employee benefit plans,” as defined in Section 3(3) of the EmployeeRetirement Income Security Act of 1974, as amended (“ERISA”), and allpension, retirement, supplemental retirement, stock, stock option, basic andsupplemental accidental death and dismemberment, basic and supplemental lifeand 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 termdisability, tuition refund, service award, company car, scholarship,relocation, patent award, fringe benefit and other employee benefitarrangements, plans, contracts, policies, or practices maintained, contributedto, or required to be contributed by the Company or any ERISA Affiliate (ashereinafter defined) (or with respect to which the Company or any ERISAAffiliate may have any liability) (the “Benefit Plans”) within theUnited States.  Each Benefit Planmaintained, contributed to or required to be contributed to by the Company orany ERISA Affiliate (or with respect to which the Company or any ERISAAffiliate 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 ofcorporations within the meaning of Section 414(b) of the Code; (ii) any tradeor business (whether or not incorporated) which is under common control withthe Company within the meaning of Section 414(c) of the Code; (iii) any memberof an affiliated service group of which the Company is a member within themeaning of Section

 

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414(m) of the Code; or (iv) anyother person or entity treated as an affiliate of the Company under Section414(o) of the Code.

 

### (b)           As applicable, with respect to eachof the Benefit Plans, true and complete copies of (i) all plan documents(including all amendments and modifications thereof) and in the case of anunwritten Benefit Plan, a written description thereof, and in either case allrelated agreements including, without limitation the trust agreement andamendments thereto, insurance contracts, and investment management agreements;(ii) the most recently filed Form 5500 series and allschedules thereto, as applicable; (iii) the current summary plan descriptionsand all material modifications thereto; (iv) the most recent trusteereport; (v) copies of any private letter rulings, requests andapplications for determination and determination letters issued with respect tothe Benefit Plans within the past five years and (vi) the equivalent underapplicable local law of items (ii) through (v) with respect to the ForeignPlans, in each case have been made available to Buyer.

 

### (c)           The Company and each ERISA Affiliateare in compliance with the provisions of ERISA and the Code (including, asapplicable, and without limitation, the qualification requirements of sections401, 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 aremaintained, except where noncompliance would not, individually or in theaggregate, have a Material Adverse Effect. Each Benefit Plan has been maintained, operated and administered incompliance with its terms and any related documents or agreements and theapplicable provisions of ERISA and the Code or of the applicable laws of eachjurisdiction in which any of the Foreign Plans are maintained, except wherenoncompliance would not, individually or in the aggregate, have a MaterialAdverse Effect.

 

### (d)           Except as set forth in Schedule5.8.3, 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 orinvestigations by any governmental agency involving the Benefit Plans or theForeign Plans, and no threatened or pending claims (except for individualclaims for benefits payable in the normal operation of the Benefit Plans orForeign Plans), suits or proceedings involving any Benefit Plan or ForeignPlan, any fiduciary thereof or service provider thereto, nor is there anyreasonable basis for any such claim, suit or proceeding.

 

### (f)            Except as set forth in Schedule5.8.4 or as disclosed in the SEC Documents, all contributions to, andpayments from, the Benefit Plans and the Foreign Plans, (other than payments tobe made from a trust, insurance contract or other funding medium) which

 

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

 

### (g)           Except as set forth in Schedule5.8.5 and except for the Euramax UK Pension Plan or as disclosed in the SECDocuments, the assets of each of the Benefit Plans and the Foreign Plans whichis an “employee pension plan” (as defined in Section 3(2) of ERISA) orotherwise provides retirement, medical or life insurance benefits following retirement,are at least equal to the liabilities of such plans, except for failures whichwould not, individually or in the aggregate, have a Material Adverse Effect.

 

# ARTICLE VIREPRESENTATIONS AND WARRANTIES OF BUYER

 

Buyers herebyrepresent and warrant to the Stockholders as follows:

 

## 6.1.          Organization.  Each of the Fund and CVC/SSB is a limitedpartnership duly created and validly existing under the laws of the State ofDelaware, and the Executive Fund is a limited liability company duly createdand validly existing under the laws of he State of Delaware.  Each Buyer has all requisite limitedpartnership or limited liability company power and authority, as applicable, tocarry 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 andAuthority.  The execution,delivery, and performance by each Buyer of this Agreement, and each AncillaryAgreement to which each Buyer is a party, and the consummation by each Buyer ofthe transactions contemplated hereby and thereby have been duly authorized by all necessary limitedpartnership or limited liability company action, as applicable, on the part ofeach Buyer.  This Agreement has been,and each Ancillary Agreement to which each Buyer is a party will be, duly andvalidly executed and delivered by each Buyer and constitutes, or willconstitute, the valid and binding obligation of each Buyer, enforceable againsteach Buyer in accordance with its terms.

 

## 6.3.          No Conflict.  The execution, delivery, and performance byeach Buyer of this

 

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Agreement, and each AncillaryAgreement to which each Buyer is a party, and the consummation by each Buyer ofthe transactions contemplated hereby and thereby does not and will not, with orwithout the giving of notice or the lapse of time, or both, (i) violateany 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 Buyeror (iv) violate or result in a breach of or constitute a default (or an eventwhich 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, orresult in or permit the acceleration of the maturity or cancellation ofperformance of any obligation under, or result in the creation or imposition ofany Encumbrance of any nature whatsoever upon any assets or property or give toothers any interests or rights therein under any indenture, deed of trust,mortgage, loan or credit agreement, license, permit, contract, lease, or otheragreement, instrument or commitment to which any Buyer is a party or by whichit may be bound or affected, except, in each case, for violations that in theaggregate would not materially hinder or impair the ability of any Buyer toperform its obligations hereunder or the consummation of the transactionscontemplated hereby.  The Fund is, andas of the Closing will continue to be, an “affiliate” (as such term is definedin Rule 12b-2 under the Exchange Act as of the date of this Agreement) ofCiticorp Venture Capital, Ltd., a New York Corporation.

 

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

 

## 6.5.          Brokers.  Buyer has retained no broker, finder orinvestment banking firm to act on its behalf in connection with thetransactions contemplated by this Agreement.

 

## 6.6.          Purchasefor Investment.  Buyer ispurchasing the Company Stock being purchased by it pursuant to Section 1.1hereof for investment and not with a view to any public resale or otherdistribution thereof, except in compliance with applicable securities laws.

 

## 6.7.          SufficientFunds.  As of the Closing Date,Buyer will have sufficient funds to consummate the purchase of the CompanyStock being purchased by it pursuant to Section 1.1 hereof.

 

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ARTICLE VIICOVENANTS

 

## 7.1.          Cooperation by the Stockholders andthe Company.  From the datehereof and prior to the Closing, the Stockholders and the Company will usetheir respective reasonable best efforts, and will cooperate with Buyer, tosecure all necessary consents, approvals, authorizations, exemptions, andwaivers from governmental authorities or other third parties (including anyrequired pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1974,as amended (the “HSR Act”), or similar foreign antitrust/competitionlaws), as shall be required in order to enable the Company and the Stockholdersto effect the transactions contemplated hereby, and will otherwise use theirrespective reasonable best efforts to cause the consummation of suchtransactions, in accordance with the terms and conditions hereof.

 

## 7.2.          Conduct of the Business PendingClosing.  From and after thedate hereof until the Closing Date, except as set forth in the disclosureschedules hereto or unless Buyer shall otherwise consent in writing, theCompany and each its Subsidiaries shall: (a) carry on its business in theordinary course in substantially the same manner in which it previously hasbeen conducted and, to the extent consistent with such business, use itsreasonable best efforts to preserve intact its present business organization,to keep available in all material respects the services of its present officersand employees, and to preserve for its business the good will of the customers,suppliers and others having business relations with it, (b) not amend itsCertificate of Incorporation or Bylaws, or other organizational documents, (c)not adopt a plan of liquidation or dissolution, and not merge or consolidatewith, or purchase substantially all or a material portion of the assets of, orotherwise acquire any business of any person, (d) not take any action describedin Section 5.2(a)-(g), nor otherwise take any action or omit to take anyactions which action or omission would result in a breach or inaccuracy of anyof their representations and warranties contained herein in any materialrespect at, or as of any time prior to the Closing, (e) maintain its books ofaccount and records in its usual, regular and ordinary manner, consistent withits past practice, (f) not take any action or omit to take any action whichwill result in a violation of any applicable law or cause a breach of anyagreements, contracts or commitments by it (including, without limitation, theContracts), except for violations or breaches which, individually or in theaggregate, would not have a Material Adverse Effect, (g) not issue, redeem,repurchase, split or reclassify any capital stock or other equity securities orissue, become a party to, redeem or repurchase any subscriptions, warrants,rights, options, convertible securities or other agreements or commitments ofany character relating to its issued or unissued capital stock, or its otherequity securities, if any, or grant any stock appreciation, phantom stock orsimilar rights, (h) not agree or commit to do any of the foregoing referred toin 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 ofbreach of this Section 7.2 or would have a Material Adverse Effect.

 

## 7.3.          Access.  From and after the date hereof, the Companyshall provide Buyer with

 

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## suchinformation as Buyer from time to time reasonably may request with respect tothe Company and its Subsidiaries and provide Buyer and its officers,consultants, employees, counsel, agents and other representatives full accessduring regular business hours and upon reasonable notice (but in a manner notmaterially disruptive to the Company’s operations) to their respectiveproperties, books and records as Buyer from time to time reasonably mayrequest, so that Buyer may have full opportunity to make such investigation asit shall desire to make of the management, business, properties, environmentalaffairs 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 writtenresignations of each director of the Company or its Subsidiaries identified on Schedule7.4 hereof.  The Investors and theCompany shall cause all of the directors of the Company immediately prior tothe Closing to execute a unanimous written consent approving the election oftwo individuals selected by Buyer as directors of the Company as of Closing.

 

## 7.5.          Fulfillmentof Agreements.  The Stockholdersand the Company shall use their reasonable best efforts to cause all of theconditions to the obligations of Buyer under Article VIII of thisAgreement to be satisfied on or prior to Closing.  The Stockholders and the Company shall promptly notify Buyer ofany event or fact coming to any Stockholder’s or the Company’s attention priorto Closing which causes any of the Stockholders’ or the Company’srepresentations, warranties, covenants or agreements contained under thisAgreement that are qualified by materiality limitations to be inaccurate andthose that are not qualified by materiality limitations to be inaccurate in anymaterial respect.  The Stockholders, tothe extent it is within their control, and the Company shall use theirreasonable best efforts to cure before the Closing any event, transaction orcircumstance occurring after the date of this Agreement that causes or willcause any such covenant or agreement under this Agreement to be breached orthat renders or will render inaccurate any such representation or warrantycontained in this Agreement.  No noticegiven pursuant to this Section 7.5 shall have any effect on (i) therepresentations, warranties, covenants or agreements contained in thisAgreement for purposes of determining the satisfaction of any conditioncontained herein or (ii) any right to indemnity hereunder.

 

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

 

## 7.7.          Confidentiality.  Each Stockholder shall, and shall cause hisor her affiliates and

 

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## representativesto, keep confidential and not disclose to any other person or entity or use forhis or its own benefit or the benefit of any other person or entity anyconfidential 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 Companyand its Subsidiaries or their business and operations (“ConfidentialInformation”) in his, its or their possession or control.  The obligations of the Stockholders underthis Section 7.7 shall not apply to Confidential Information which (i) is orbecomes generally available to the public without breach of the commitmentprovided for in this Section; (ii) is required to be disclosed by law, order orregulation of a court or tribunal or governmental authority or (iii) requestedby any regulatory or other government body; provided, however,that, in any such case, the Stockholder subject to such requirement shallnotify the Company as early as reasonably practicable prior to disclosure toallow the Company to take appropriate measures to preserve the confidentialityof such Confidential Information at the cost of Company.

 

## 7.8.          Hart-Scott-RodinoAct.  As soon as practicableafter 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 theUnited States Department of Justice (the “DOJ”) and the Federal TradeCommission (“FTC”), and any required foreign governmental bodies, anyreports or notifications that may be required to be filed by them under the HSRAct or similar foreign antitrust/competition laws in connection with thetransactions contemplated by this Agreement. All fees due from any party to the FTC, DOJ or other foreign governmentalbodies under the HSR Act or similar foreign antitrust/competition laws inconnection with the filing of any of those reports or notifications shall bepaid by the Company.

 

## 7.9.          FurtherAssurances.  At any timeor from time to time after the Closing, Buyer shall, at the request of anyStockholder, execute and deliver any further instruments or documents and takeall such further action as such Stockholder may reasonably request in order toevidence the consummation of the transactions contemplated hereby. At any timeor from time to time after the Closing, each Stockholder shall, at the requestof Buyer, execute and deliver any further instruments or documents and take allsuch further action as Buyer may reasonably request in order to evidence theconsummation of the transactions contemplated hereby.

 

## 7.10.        Assignmentof Registration Rights. Effective as of the Closing, and without any further action required byany party hereto, each Investor hereby assigns to Buyer all of its rights andbenefits 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, CiticorpVenture Capital, Ltd. and the other stockholders named therein.

 

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## 7.11.        Exclusivity.  Neither any Stockholder nor the Company norany of their respective officers, directors, employees, affiliates, agents orrepresentatives will, directly or indirectly, encourage, initiate or solicitoffers for, furnish information regarding or engage in any negotiations,meetings or other communications with any third party concerning, or enter intoany agreements with respect to, any acquisition of the Company Stock beingpurchased hereunder, the Company or its Subsidiaries or any of the businessesof the Company or its Subsidiaries, by any party other than Buyer, and in theevent that during such period any offers are received, the Stockholders and theCompany will promptly communicate to Buyer their existence and terms, and theidentity of the party making such offer.

 

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

 

## 7.13.        RestrictiveCovenants.

 

### (a)           During the period beginning on theClosing Date and ending on the second (2nd) anniversary of theClosing 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 orstaff of the Company or any of its Subsidiaries to leave the employ of theCompany or any of its Subsidiaries for any reason whatsoever (excludingordinary course public advertisements not specifically targeted at employees ofthe Company or its Subsidiaries), nor (ii) offer or provide employment (whethersuch 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 whothen currently is, or who within six months immediately prior thereto was, anofficer or other management employee of the Company or its Subsidiaries.  NoInvestor will be deemed in violation of subclause (ii) of the foregoingsentence if representatives of separate operating divisions of such Investorcause such Investor to offer or provide employment to a relevant employee ofthe Company or its Subsidiaries as a result of ordinary course publicadvertisements, if such representatives of the separate division of thatInvestor were not aware of the existence of this Agreement and were not directed,encouraged, or knowingly permitted to take such actions by representatives ofsuch Investor who were aware of the existence of this Agreement.

 

### (b)           Each Stockholder acknowledges andagrees that the provisions of this

 

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### Section7.13 are reasonable and necessary to protect the legitimate business interestsof Buyer and its investment in the Company. No Stockholder shall contest that Buyer’s and the Company’s remedies atlaw for any breach or threat of breach by such Stockholder or any of itsaffiliates of the provisions of this Section 7.13 will be inadequate, and thatBuyer and the Company shall be entitled to seek an injunction or injunctions toprevent breaches of the provisions of this Section 7.13 and to enforcespecifically such terms and provisions, in addition to any other remedy towhich Buyer or the Company may be entitled at law or equity.  The restrictive covenants contained in thisSection 7.13 are covenants independent of any other provision of this Agreementor any other agreement between the parties hereunder and the existence of anyclaim which any Stockholder may allege against Buyer under any other provisionof the Agreement or any other agreement will not prevent the enforcement of thesecovenants.

 

### (c)           If any of the provisions contained inthis Section 7.13 shall for any reason be held to be excessively broad as toduration, scope, activity or subject, then such provision shall be construed bylimiting and reducing it, so as to be valid and enforceable to the extentcompatible with the applicable law or the determination by a court of competentjurisdiction.

 

## 7.14.        NoParachute Payments.  Prior tothe Closing, the Company and its Subsidiaries shall, and each Stockholder shallcooperate with the Company and its Subsidiaries to: (i) obtain a favorable voteby the holders of 75% or more of the Company’s outstanding voting shares toapprove any agreement, contract, arrangement or plan disclosed (or required tobe disclosed) on Schedule 5.7.5; and (ii) take, or, in any case inwhich whether any such payment is made is discretionary, refrain from taking,any other action reasonably necessary to prevent such payment from constitutingan “excess parachute payment” within the meaning of Section 280G of theCode.  For the avoidance of doubt, oncethe Company has received the shareholder approval contemplated by this Section7.14, it is understood that the Company is required to make all such paymentswhether or not, despite that approval, such payments constitute “excessparachute payments.”  In connectiontherewith, each Stockholder will execute a written consent or other approval inthe form provided by the Company approving such payments under Section 280G(b)(5).

 

## 7.15.        D&OIndemnification.

 

(a)           The Company and Buyer agree that allrights to indemnification or exculpation by the Company now existing in favorof each present and former director or officer of the Company (the “IndemnifiedParties”) as provided in the Company Certificate of Incorporation or theCompany Bylaws, in each case as in effect on the date of this Agreement, shallsurvive the Closing.  No change to suchindemnification or exculpation rights shall affect or

 

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

 

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

 

(c)           AnyIndemnified Party wishing to claim indemnification under this Section 7.15after the Closing, upon learning of any claim, action, suit, proceeding orinvestigation (a “Claim”), shall notify the Company thereof (althoughthe failure to so notify the Company shall not relieve the Company from anyliability that the Company may have under this Section 7.15, except to theextent such failure actually prejudices the Company).  In the event of any such Claim, the Company shall have the rightto assume the defense thereof and the Company shall not be liable to suchIndemnified Party for any legal expenses of other counsel incurred after theCompany assumes such defense or any other expenses subsequently incurred bysuch Indemnified Party in connection with the defense thereof, except that ifthe Company elects not to assume such defense or fails to assume such defensewithin fifteen (15) days of receipt of notice, or if under the applicablestandards of professional conduct no one law firm could represent the Companyand the Indemnified Party, the Indemnified Party may retain counsel reasonablysatisfactory to him or her and the Company shall pay all reasonable fees andexpenses of such counsel for the Indemnified Party promptly as statementstherefor are received by the Company; *provided*, *however*, that (i) theCompany shall not, in connection with any such action or proceeding or separatebut substantially similar actions or proceedings arising out of the samegeneral allegations, be liable for the fees and expenses of more than oneseparate firm of attorneys (in addition to any local counsel) at any time forall Indemnified Parties, (ii) the Company and the Indemnified Parties willcooperate in the defense of any such matter and (iii) the Company shall not beliable for any settlement effected without its prior written consent, whichconsent will not be unreasonably withheld or delayed; and *provided, further*, that theCompany shall not have any obligation hereunder to any Indemnified Party if andwhen a court of competent jurisdiction shall ultimately determine that theindemnification of such Indemnified

 

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

 

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

 

 

ARTICLE VIIICONDITIONS TO BUYER’S OBLIGATIONS

 

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

 

## 8.1.          Representations and Warranties Trueand Correct .  All of therepresentations and warranties of each of the Stockholders and the Companycontained in this Agreement, in any Ancillary Agreement or in any writtencertificate delivered pursuant to this Agreement, shall be true and correct onthe date of this Agreement, such Ancillary Agreement or such certificate, asthe case may be, and shall be true and correct in all material respects on andas of the Closing Date as if made on and as of the Closing Date (except forrepresentations and warranties that expressly relate to a date earlier than theClosing Date which shall continue to be true and correct as of the specifieddate and except for representations and warranties that contain MaterialAdverse Effect or other materiality qualifications, which shall be true andcorrect in all respects).

##  

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

##  

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

 

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## 8.4.          No Prohibition or Proceedings.  No statute, rule or regulation, or order ofany court or administrative agency shall be in effect, and no action orproceeding shall be pending or threatened, that prohibits Buyer fromconsummating the transactions contemplated hereby or the ability of the Companyand each of its Subsidiaries to conduct its business substantially in themanner that such business was being conducted prior to the Closing.

##  

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

##  

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

##  

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

##  

## 8.8.          Tag-Along Waivers.  Buyer shall have received from the stockholders of the Companyidentified on Schedule 8.8 hereof waivers of such stockholders’ rightsunder the Shareholders Agreement or otherwise to participate in the purchaseand sale contemplated by this Agreement, such waivers to be in full force andeffect without being challenged or disputed by such stockholders through andincluding the Closing, with respect to the number of shares of Company Stockowned by the applicable stockholders as set forth on Schedule 8.8hereof.

##  

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

##  

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

##  

## 8.11.        Certain Shareholder Approvals.  The Company and its Subsidiaries shall haveobtained 75% or more of the Company’s outstanding voting shares approving anyagreement,

 

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contract, arrangement or planon Schedule 5.7.5 referred to in Section 7.14 hereof, and the Company,its Subsidiaries and the Stockholders shall have taken all other necessaryaction (or refrained from taking an action) to otherwise comply with Section7.14 hereof and to reasonably satisfy Buyer that no payments made pursuant toany agreements, contracts, arrangements or plans disclosed on Schedule 5.7.5have resulted or could result, separately or in the aggregate, in the paymentof any “excess parachute payments” within the meaning of Section 280G of theCode.

##  

# ARTICLE IXCONDITIONS TO STOCKHOLDERS’ OBLIGATIONS

 

The obligations of the Stockholders to consummate thetransactions contemplated hereby at the Closing shall be subject to thesatisfaction or waiver (provided that the consent of all parties to theAgreement, including any management Tag Sellers, will be required to waive theperformance 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.          Representationsand Warranties True and Correct. All of the representations and warranties of Buyer contained in thisAgreement, in any Ancillary Agreement or in any written certificate deliveredpursuant to this Agreement shall be true and correct on the date of thisAgreement, 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 ClosingDate as if made on and as of the Closing Date (except for representations andwarranties that expressly relate to a date earlier than the Closing Date whichshall continue to be true and correct as of the specified date and except forrepresentations and warranties that contain Material Adverse Effect or othermateriality qualifications, which shall be true and correct in all respects).

##  

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

##  

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

##  

## 9.4.          No Prohibition or Proceedings.  No statute, rule or regulation, or order ofany court or administrative agency shall be in effect, and no action orproceeding shall be pending or

 

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

##  

## 9.5.          Governmental Consents and OtherApprovals.  The waiting periodunder the HSR Act shall have expired or been terminated and all consents,approvals, authorizations, exemptions, and waivers from governmental agenciesthat shall be required in order to consummate the transactions contemplatedhereby, 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 writtenconsent of the Board of Directors of the Company, dated the date hereof, in theform provided to the Fund on the date hereof.

##  

# ARTICLE XTERMINATION PRIOR TO CLOSING

 

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

##  

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

###  

### (b)           Byeither the Stockholders’ Representative or Buyer by written notice given to theother, if the Closing has not occurred on or before May 15, 2003 (the “TerminationDate”) 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 theStockholders’ Representative; provided, however, that either theBuyer or the Stockholders’ Representative may, by written notice to the other,extend the Termination Date to June 15, 2003 if the sole reason that theClosing shall not have occurred is due to the failure of the conditions setforth in the first sentence of Sections 8.5 or 9.5 hereof (to the extentrelating exclusively to approvals or authorizations required from governmentalagencies in Europe relating to competition laws);

###  

### (c)           Byeither the Stockholders or Buyer by written notice given to the other, if therehas been a material breach by (i) Buyer, in the case of notice from theStockholders’ Representative, or (ii) the Stockholders or the Company, in thecase of notice from Buyer, of any of the representations, warranties, covenantsor agreements made by such person in this Agreement.

###  

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

 

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

##  

# ARTICLE XISURVIVAL AND INDEMNIFICATION

 

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

##  

### (a)           claimsfor Losses under Section 11.2(a)(iii) hereof (relating to certain Taxes), whichmay be asserted until December 31, 2005;

###  

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

###  

### (c)           anyclaims which have been asserted and which are the subject of a written noticefrom the Stockholders to Buyer or from Buyer to the Stockholders, as may beapplicable, prior to the expiration of the Survival Period or other applicabletime restriction set forth in this Section 11.1.

###  

## 11.2.        General Indemnification.  (a) Following the Closing, each Stockholder shall severally, and notjointly, indemnify and defend the Buyer and each of its respective directors,officers, affiliates, employees, agents and representatives, and shall holdeach of them harmless from and against all Losses that are incurred or sufferedby any of them in connection with or resulting from:

##  

#### (i)            anymisrepresentation or breach of any representation or warranty (excluding therepresentations and warranties made in Article IV hereof, which shall begoverned by Section 11.2(b) hereof, but including the representations andwarranties made in Articles III 

 

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and Vhereof) made by that Stockholder in this Agreement, any Ancillary Agreement orany disclosure schedule furnished or to be furnished to Buyer in connectionwith or as contemplated by this Agreement;

####  

#### (ii)           anybreach of any covenant made by the Company in this Agreement, any AncillaryAgreement or any disclosure schedule furnished or to be furnished to Buyer inconnection with or as contemplated by this Agreement, which covenant of theCompany requires performance prior to the Closing;

####  

#### (iii)          (a) notwithstanding any disclosures inthe disclosure schedules, any Taxes arisingfrom adjustments by any Taxing Authority or the filing of an amended TaxReturn, with respect to any Tax Return that was filed, or was required to befiled, prior to the Closing Date, to the extent the Taxes arising from suchadjustments or amended returns relate directly or indirectly to theReorganization or any agreements entered into by the Company or any of itsaffiliates in connection with or as result of the Reorganization, and (b) anyTaxes arising from or attributable to a distribution by any Subsidiary ofearnings and profits or distributable reserves that were generated as a resultof the Reorganization, provided, that in the case of such a distributionby a Subsidiary occurring after the Closing Date, only to the extent Taxesimposed on such post-Closing distribution are not incurred as a result ofaffirmative actions taken by such Subsidiary after Closing which cause suchSubsidiary to be managed and controlled for Tax purposes in a country otherthan the country in which it was managed and controlled immediately prior tothe Closing; and

####  

#### (iv)          theenforcement 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 toindemnification under Section 11.2(a)(i) in respect of Losses to which it isentitled to indemnification under Section 11.2(a)(iii) (calculated withoutregard to any limitation on such Losses contained herein).

 

### (b)           Followingthe Closing, each Stockholder shall severally (and not jointly) indemnify theBuyer and each of its respective directors, officers, affiliates, employees,agents and representatives, and shall hold each of them harmless from andagainst all Losses that are incurred or suffered by any of them in connectionwith or resulting from:

###  

#### (i)            anymisrepresentation or breach of any representation or warranty made by suchStockholder in Article IV hereof; provided, however, that aStockholder shall not be liable in any respect for any Losses resulting fromany misrepresentation or breach by any other Stockholder of the representationsand warranties of such other Stockholder contained in

 

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Article IV hereof;

####  

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

####  

#### (iii)          theenforcement by Buyer of its rights under this Section 11.2(b) against suchStockholder.

####  

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

###  

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

####  

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

####  

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

####  

### (d)           Notwithstandingthe foregoing, the Stockholders shall not be obligated to provide any suchindemnification for Losses pursuant to claims under Section 11.2(a) hereof(other than claims under Section 11.2(a)(iii) hereof (relating to certainTaxes)) 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 itsshare of the Losses in excess of such Threshold as provided below.  The maximum amount of Losses Buyer mayrecover pursuant to claims under Section 11.2(a) hereof shall not exceedU.S.$40,000,000 (the “Maximum”); provided, however, that:

###  

#### (i)            themaximum amount of Losses Buyer may recover pursuant to claims under Section11.2(a)(iii) hereof (relating to certain Taxes) shall not exceedU.S.$15,000,000 (the “Special Tax Maximum”);

 

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#### (ii)           withrespect to each claim for indemnification brought under Section 11.2(a), noStockholder will be liable for more than such Stockholder’s Stockholder Portionof 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 Stockholderfor Losses relating to all claims for indemnification brought under Section11.2(a) will in no event exceed the product obtained by multiplying (x) theMaximum (or, if greater, the amount of Losses if a claim relating to Section3.1, Section 3.2 or Section 3.5 hereof) by (y) suchStockholder’s Stockholder Portion;

####  

#### (iii)          theThreshold and Maximum shall not apply to Losses arising in respect of claimsfor misrepresentations and breach of warranties relating to Section 3.1hereof (relating to organization), Section 3.2 hereof (relating toauthority), Section 3.5 hereof (relating to capitalization) and all of ArticleIV hereof (relating to certain Stockholder representations), all of whichmay be asserted without limitation; and

####  

#### (iv)          theThreshold shall not apply to Losses arising in respect of claims under Section11.2(a)(iii) hereof (relating to certain Taxes).

####  

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

 

No limitation orcondition of liability provided in this Article XI shall apply to Buyer,the Company or a particular Stockholder, respectively, for anymisrepresentation or breach of warranty or covenant contained herein if suchmisrepresentation or breach of warranty or covenant was made by Buyer, theCompany, or a particular Stockholder willfully or with intent to deceive (itbeing understood that no other Stockholder shall lose the benefits of thelimitations and conditions of liability provided in this Article XI forbreaches made willfully or with intent to deceive by a particular Stockholder).  For purposes of determining the existence ofany misrepresentation, breach of warranty, or nonfulfillment of any covenant oragreement, or calculating the amount of any Losses incurred in connection withany such misrepresentation, breach of warranty, or nonfulfillment of anycovenant or agreement, any and all references to Material Adverse Effect shallbe disregarded.

 

The rightto indemnification, payment of Losses or other remedy based on therepresentations, warranties, covenants and agreements contained herein will notbe affected by any investigation

 

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conductedwith respect to the accuracy or inaccuracy of, or compliance with, any suchrepresentation, warranty, covenant, or agreement; provided, however,that Buyer shall not be entitled to indemnification for Losses under this ArticleXI with respect to any breach of a representation or warranty set forth in ArticleIII hereof if the Indemnitor can establish that Buyer had Buyer Knowledgeof the falsity or inaccuracy of such representation or warranty on or beforethe date hereof; provided, further, that indemnification for suchLosses shall only be limited or reduced by the amount of such Lossesattributable to such falsity or inaccuracy for which Buyer had Buyer Knowledgeon or before the date hereof.  Forpurposes of the forgoing, “Buyer Knowledge” means the actual knowledge ofJoseph M. Silvestri.

 

### (e)           (i)  A party entitled to indemnificationhereunder shall herein be referred to as an “Indemnitee.”  A party obligated to indemnify an Indemniteehereunder shall herein be referred to as an “Indemnitor.”  As soon as is reasonable after an Indemniteeeither (a) receives notice of any claim or the commencement of any action byany third party which such Indemnitee reasonably believes may give rise to aclaim for indemnification from an Indemnitor hereunder or (b) sustains any Lossnot involving a third-party claim or action which such Indemnitee reasonablybelieves may give rise to a claim for indemnification from an Indemnitorhereunder, such Indemnitee shall, if a claim in respect thereof is to be madeagainst an Indemnitor under Article XI hereof, notify such Indemnitor inwriting of such claim, action or Loss, as the case may be; provided, however,that failure to notify Indemnitor shall not relieve Indemnitor of its indemnityobligation, except to the extent Indemnitor is actually prejudiced in itsdefense of the action by such failure. Any such notification must be in writing and must state in reasonabledetail the nature and basis of the claim, action or Loss, to the extentknown.  Except as provided in this Section11.2, Indemnitor shall have the right, using counsel reasonably acceptableto the Indemnitee, to contest, defend, litigate or settle any such third-partyclaim which involves (and continues to involve) solely monetary damages; providedthat the Indemnitor shall have notified the Indemnitee in writing of itsintention to do so; provided, further, that (1) the Indemnitorexpressly agrees in such notice to the Indemnitee that, as between theIndemnitor and the Indemnitee, the Indemnitor shall be solely obligated tofully satisfy and discharge the third-party claim (and all reasonable fees andexpenses of Buyer and its indemnified parties incurred in connection with suchthird-party claim prior to Indemnitor’s assumption of the defense of suchthird-party claim), notwithstanding any limitation with respect toindemnification included in this Agreement other than (to the extent notrequired to be waived pursuant to clause (2) below) the Threshold, the Maximumor the Special Tax Maximum; (2) the Indemnitor shall in its notice to theIndemnitee (x) waive the applicability of the Threshold to such third partyclaim if the amount in controversy could reasonably be expected to be less than200% of the Threshold or (y) waive the applicability of the Maximum or SpecialTax Maximum (whichever maximum would otherwise be applicable to such thirdparty claim) if the amount in controversy could reasonably be expected to bemore than 200% of the Maximum or Special Tax Maximum (whichever 

 

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

###  

#### (ii)           TheIndemnitor, if it shall have assumed the defense of any third-party claim asprovided in this Agreement, shall not consent to a settlement of, or the entryof any judgment arising from, any such third-party claim without the priorwritten consent of the Indemnitee (which consent shall not be unreasonablywithheld or delayed).  The Indemnitorshall not, without the prior written consent of the Indemnitee, enter into anycompromise or settlement which commits the Indemnitee to take, or to forbear totake, any action or which does not provide for a complete release by such thirdparty of the Indemnitee.  The Indemniteeshall have the sole and exclusive right to settle any third-party claim, onsuch terms and conditions as it deems reasonably appropriate, to the extentsuch third-party claim involves equitable or other non-monetary relief, andshall have the right to settle any third-party claim involving monetary damageswith the written consent of the Indemnitor, which consent shall not beunreasonably withheld or delayed.  Allexpenses (including without limitation attorneys’ fees) incurred by theIndemnitor in connection with the foregoing shall be paid by theIndemnitor.  No failure by an Indemnitorto acknowledge in writing its indemnification obligations under this Article XIshall relieve it of such obligations to the extent such obligations exist.

####  

#### (iii)          Ifan Indemnitee is entitled to indemnification against a third-party claim, andthe Indemnitor fails to accept a tender of, or assume the defense of, athird-party claim pursuant to this Section 11.2, the Indemnitor shallnot be entitled, or shall lose its right, to contest, defend, litigate andsettle such a third-party claim, and the Indemnitee shall have the right,without prejudice to its right of indemnification hereunder, in its discretionexercised in good faith, to contest, defend and litigate such third-partyclaim, and may settle such third-party claim either before or after theinitiation of litigation, at such time and upon such terms as the Indemniteedeems fair and reasonable, provided that at least ten (10) days prior toany such

 

34

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settlement, written notice ofits intention to settle is given to the Indemnitor.  If, pursuant to this Section 11.2, the Indemnitee socontests, defends, litigates or settles a third-party claim for which it isentitled to indemnification hereunder, then subject to the terms, conditionsand limitations set forth in this Article XI, the Indemnitee shall bereimbursed by the Indemnitor for the reasonable attorneys’ fees and otherexpenses of contesting, defending, litigating and/or settling the third-partyclaim which are incurred from time to time.

####  

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

##  

## 11.4.        Sole Remedy. Following the Closing, the indemnification provided for in this ArticleXI shall be the sole remedy of the parties hereto and their respectivesuccessors or assigns in respect of any claim for monetary damages arisingunder or out of this Agreement or any Ancillary Agreement; provided, however,that this Section 11.4 shall not apply to Losses resulting from resulting fromfraud.

##  

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

##  

# ARTICLE XIIMISCELLANEOUS

#  

## 12.1.        Interpretive Provisions.

##  

### (a)           Wheneverused in this Agreement, (i) “including” (or any variation thereof) meansincluding without limitation and (ii) any reference to gender shall include allgenders.

###  

### (b)           Forpurposes of this Agreement, none of the Stockholders shall be

 

35

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

###  

### (c)           Theparties acknowledge and agree that (i) each party and its counsel have reviewedthe terms and provisions of this Agreement and have contributed to itsdrafting, (ii) the normal rule of construction, to the effect that anyambiguities are resolved against the drafting party, shall not be employed inthe interpretation of it, and (iii) the terms and provisions of this Agreementshall be construed fairly as to all parties hereto and not in favor of oragainst any party, regardless of which party was generally responsible for thepreparation of this Agreement.

###  

## 12.2.        Entire Agreement.  This Agreement (including the disclosure schedules and thecertificates and exhibits attached hereto) together with the AncillaryAgreements constitute the sole understanding of the parties with respect to thesubject matter hereof.

##  

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

##  

## 12.4.        Headings.  Theheadings of the Articles, Sections, and paragraphs of this Agreement areinserted for convenience only and shall not be deemed to constitute part ofthis Agreement or to affect the construction hereof.

##  

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

##  

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

 

36

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

##  

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

##  

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

 

CVCCapital Partners SA40 rue La Perouse75116 Paris, FranceAttn: Ronald A. CollinsFax No.: +33-(0)1-4502-2301

 

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

 

Kirkland& Ellis153 East 53rd StreetNew York, NY 10022Attn:  Adrian van Schie, Esq.

FaxNo.: (212) 446-4900

 

if to Buyer to:

 

CiticorpVenture Capital Equity Partners, L.P.399 Park Avenue, 14th FloorNew York, NY 10043Attention:  Joseph M. SilvestriFax No.: (212) 888-2940

 

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

 

37

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DechertLLP4000 Bell Atlantic Tower1717 Arch StreetPhiladelphia, Pennsylvania 19103-2793Attention: Craig L. Godshall, Esq.Fax No.: (215) 994-2222

 

if to Paribas to:

 

BNPParibas787 Seventh AvenueNew York, New York 10019Attention: Steve AlexanderFax No.: (212) 841-3558

 

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

 

KennethL. Spangler, Esq.BNP Paribas787 Seventh AvenueNew York, NY 10019Fax No.: (212) 841-2599

 

If to the Company to:

 

EuramaxInternational, Inc.

5445 TriangleParkway, Suite 350

Norcross,Georgia 30092

Attention:Chief Executive Officer

Facsimile:(770) 263-8031

 

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

 

## 12.8.        Governing Law; Consent toJurisdiction.  This Agreementshall be construed in accordance with and governed by the laws of the State ofNew York applicable to agreements made and to be performed wholly within thatjurisdiction.  Each party hereto, foritself and its successors and assigns, irrevocably agrees that any suit, actionor proceeding arising out of or relating to this Agreement may be instituted inthe United States District Court for the Southern

 

38

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District of New York, UnitedStates of America or in the absence of jurisdiction, the state courts locatedin New York, New York, and generally and unconditionally accepts andirrevocably submits to the non-exclusive jurisdiction of the aforesaid courtsand irrevocably agrees to be bound by any final judgment rendered thereby fromwhich no appeal has been taken or is available in connection with thisAgreement.  Each party, for itself andits successors and assigns, irrevocably waives any objection it may have now orhereafter to the laying of the venue of any such suit, action or proceeding,including, without limitation, any objection based on the grounds of forum nonconveniens, 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 courtmay be effected by mailing a copy thereof by registered or certified mail (orany substantially similar form of mail), postage prepaid, to it at its addressset forth in Section 12.7 hereof or at such other address of which theother parties shall have been notified in accordance with the provisions of Section12.7 hereof, such service being hereby acknowledged by the parties to beeffective and binding service in every respect.  Nothing herein shall affect the right to serve process in anyother manner permitted by law.

##  

## 12.9.        Public Announcements.  Neither any Stockholder, the Company norBuyer shall make any public statements, including, without limitation, anypress releases, with respect to this Agreement and the transactionscontemplated 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 consentshall not be unreasonably withheld) except as may be required by law.  If a public statement is required to be madeby law, the parties shall consult with each other in advance as to the contentsand 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 theparties hereto and their permitted successors and assigns, and no other party(other than the Stockholders’ Representative) shall be entitled to rely on thisAgreement or accrue any benefit, claim, or right of any kind whatsoeverpursuant to, under, by, or through this Agreement.

##  

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

##  

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

 

39

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# ARTICLE XIIICERTAIN DEFINITIONS

 

The followingterms shall have the meanings set forth below:

 

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

 

“businessday” means any day other than a day on which banks in the State of New Yorkor 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 typesto which the Company or any Subsidiary is a party or by which the Company orany Subsidiary or any of their properties is bound as of the date hereof andbetween the date hereof and the Closing Date (including, without limitation,real property leases and labor or employment-related agreements): (a) jointventure and limited partnership agreements; (b) mortgages, indentures, loan orcredit agreements, security agreements and other agreements and instrumentsrelating to the borrowing of money or extension of credit; (c) agreements forthe 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 formachinery and equipment, motor vehicles, or furniture and office equipment orother 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 lastthree calendar years; (e) agreements restricting in any manner the right of theCompany to compete with any other person, restricting the right of the Companyto sell to or purchase from any other person; (f) agreements between theCompany and any of its affiliates; (g) guaranties, performance, bid orcompletion bonds, surety and appeal bonds, return of money bonds, and surety orindemnification agreements; (h) custom bonds and standby letters of credit; (i)any license or other agreements to which the Company or any Subsidiary is aparty regarding any Intellectual Property of the Company or any Subsidiary orany Intellectual Property of others; (j) other agreements, contracts andcommitments which cannot be terminated by the Company or any Subsidiary onnotice of thirty (30) days or less and without payment by the Company or anySubsidiary of less than $10,000 upon such termination and (k) powers ofattorney.

 

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

 

40

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the possession, directly orindirectly or as trustee or executor, of the power to direct or cause thedirection of the management or policies of a Person, whether through theownership of stock, as trustee or executor, by contract or credit arrangementor otherwise;

 

“GAAP”means United States generally accepted accounting principles.

 

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

 

“Losses”shall mean any and all losses, liabilities, damages (including, withoutlimitation, 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 otherprofessional fees and disbursements of every kind, nature and description)resulting from, arising out of or incident to any matter for whichindemnification is provided under this Agreement; provided, that Lossesshall not include punitive damages unless payable to third parties.

 

“MaterialAdverse Effect” means any circumstance or event which, individually or inthe aggregate with any other circumstance or event, is reasonably likely tohave 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 takenas a whole.  For the purposes of thisAgreement, the determination of whether a breach of a representation andwarranty or covenant of this Agreement shall be deemed to give rise to aMaterial Adverse Effect shall be determined on a cumulative basis by adding theeffect of the breach of any such representation and warranty or covenant(determined without regard to any materiality or Material Adverse Effectqualifiers) to the effect of all other breaches of representations andwarranties and covenants of this Agreement (determined without regard to anymateriality or Material Adverse Effect qualifiers) for each of the applicableperiod or periods to which each such representation, warranties or covenantsrelate, in all cases before applying the materiality standard set forth in thepreceding sentence, and then determining whether, for any of the applicableperiods, such aggregate sum exceeds the materiality standard set forth in thepreceding sentence.  For purposes ofthis definition of Material Adverse Effect, the effect of any matter as to anypast period shall be determined based on its actual effect, and its effect asto any future period shall be determined based on the effect that such matteris 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

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group is defined in Section13(d)(3) of the Securities Exchange Act of 1934, as amended).

 

“Reorganization”shall have the meaning assigned to it in the Amended and Restated SupplementalIndenture, effective December 14, 1999, among Euramax Ltd. and the otherIssuers named therein, the Guarantors named therein and The Chase ManhattanBank, as Trustee.

 

“StockholderPortion” means, with respect to each Stockholder, the percentage obtainedby dividing the number of shares of Company Stock being sold by suchStockholder hereunder by the aggregate number of shares of Company Stockoutstanding as of the date hereof on a fully-diluted basis (taking into accountexercises 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) isa general partner with 50% or more of the voting partnership interests.

 

42

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IN WITNESSWHEREOF, each of the parties hereto has caused this Agreement to be executed onits 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

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IN WITNESS WHEREOF, each of the parties hereto hascaused this Agreement to be executed on its behalf as of the date first abovewritten.

 
|   |   | **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

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**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

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| **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                      |

 

----

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

 

46

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**Exhibit 1.3**

 

**SALENOTICE**

 

 

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

 

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

 

DATE:    April 15, 2003

 

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

 

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

 

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

###  

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

###  

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

 

47

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and conditions of the Stock Purchase Agreement and must be accompaniedby an executed Joinder to the Stock Purchase Agreement in the form attached as ExhibitB hereto.

###  

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

###  

### (e)           All acceptance notices, together withthe required Joinders and (for those stockholders identified on Schedule 8.8of the Stock Purchase Agreement) Letter Agreements, must be duly executed anddelivered by the other stockholders to the Investors on or before the NoticeDeadline.  Original execution copies ofthe foregoing documents will be accepted for delivery by the Investors at thefollowing 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 questionsregarding this Sale Notice, they should contact Craig Godshall of Dechert LLPat (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

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**ExhibitA**

 

**STOCKPURCHASE AGREEMENT**

 

(Attached)

 

49

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**ExhibitB**

 

**Formof Joinder**

 

**JOINDERTO THE STOCK PURCHASE AGREEMENT**

 

THIS JOINDER tothe Stock Purchase Agreement, dated April    , 2003, amongCitigroup 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 PurchaseAgreement”), 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 theStock Purchase Agreement on the terms and conditions set forth therein, andStockholder desired to become a party to the Stock Purchase Agreement inaccordance with the terms hereof.

 

NOW, THEREFORE, inconsideration of the foregoing and other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the Stockholderhereby agrees as follows:

 

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

###  

### (b)           I have full legal right, power andauthority to enter into this Joinder and to perform my obligations hereunderwithout the need for the consent of any other person.

###  

### (c)           This Joinder has been dulyauthorized, executed and delivered by me and constitutes my valid and bindingobligation enforceable against me in accordance with the terms hereof.

###  

### (d)           I have executed this Joinder anddeclare that the information contained herein is current, complete and accurateand 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 inaccordance with the internal law of the State of New York, without givingeffect to principles of conflicts of law.

 

50

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|   | STOCKHOLDER |
|--------|-------------|
|   |        |
|   |        |   |
|   | Name:       |
|   |        |
|   | Date:       |   |   |
|        |             |  |  |

 

51

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**ExhibitC**

 

**FormLetter Agreement**

 

Euramax International, Inc.

5445 Triangle Parkway, Suite 350

Norcross, Georgia 30092

 

April 15, 2003

 

 

 

Gentlemen:

 

This LetterAgreement (the “Letter Agreement”) sets forth a binding agreement and isentered into in connection with the Sale Notice (“Sale Notice”), dated April15, 2003, from CVC European Equity Partners, L.P. (“CVC Europe”), CVC EuropeanEquity Partners (Jersey), L.P. (“CVC Europe Jersey”) and BNP Paribas(“Paribas”) to Euramax International, Inc., a Delaware corporation (the“Company”).  The Sale Notice wasdelivered pursuant to the terms of the Shareholders Agreement, dated December8, 1999, by and among the Company, CVC Europe, CVC Europe Jersey, CiticorpVenture Capital, Ltd., Paribas and the stockholders of the Company namedtherein (the “Shareholders Agreement”) and the Stock Purchase Agreement, datedas of the date hereof, among Citigroup Venture Capital Equity Partners, L.P.,the Company and the stockholders of the Company named therein (the “StockPurchase Agreement”).

 

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

 

You herebyacknowledge and agree that except for (1) grants of[        ] shares of Company restrictedstock 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 toyou, or confer benefits or accelerate benefits of yours under

 

52

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any contract, option agreement, benefit plan or any other plan orarrangement of or with the Company (including, without limitation, anyseverance or employment agreement between you and the Company or itssubsidiaries, the Company’s 1999 Phantom Stock Plan, the Company’s IncentiveCompensation Plan and the Company’s Supplemental Executive Retirement Plan) inconnection with or as a result of the transactions contemplated by the StockPurchase Agreement, and you are not entitled to or have any right to receiveany payments, benefits or other compensation in connection with or as a resultof the transactions contemplated by the Stock Purchase Agreement.

 

Please executebelow 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

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**EXHIBIT 8.6.1**

 

 

              , 2003

 

Citigroup Venture Capital Partners, L.P.CVC Executive Fund LLCCVC/SSB Employee Fund, L.P.

 

Gentlemen:

 

We are issuing thisopinion letter in our capacity as special legal counsel to CVC European EquityPartners, L.P., a Delaware limited partnership (the “Partnership”), inresponse to the requirement in Section 8.6 of the Stock Purchase Agreementdated as of April      , 2003 (the “PurchaseAgreement”), by and among Euramax International, Inc. (“Euramax”),Citigroup Venture Capital Partners, L.P. (the “Fund”), CVC ExecutiveFund LLC (the ”Executive Fund”), CVC/SSB Employee Fund, L.P. (the “EmployeeFund” 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, exclusionsand other limitations which are identified in this letter and in the schedulesattached to this letter, we advise you that:

 

1.             The Partnership is a limitedpartnership existing and in good standing under the Delaware Revised UniformLimited Partnership Act, as revised (the “Act”).

 

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

 

3.                                       ThePartnership’s execution, delivery and performance of the Purchase Agreementhave been authorized by all necessary partnership action on the part of thePartnership.

 

4.                                       ThePartnership has duly executed and delivered the Purchase Agreement.

 

54

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5.                                       ThePartnership’s execution, delivery and performance of the Purchase Agreement donot violate its certificate of limited partnership or its amended and restatedagreement of limited partnership.

 

6.                                       ThePurchase Agreement is a valid and binding obligation of the Partnership and isenforceable against the Partnership in accordance with its terms.

 

In preparing this letter,we have relied without any independent verification upon the assumptionsrecited in Schedule B to this letter and upon:  (i) information contained in certificates obtained fromgovernmental authorities; (ii) factual information represented to be truein the Purchase Agreement; (iii) factual information provided to us by thePartnership in a Support Certificate signed by the Partnership and its generalpartner; and (iv) factual information we have obtained from such othersources as we have deemed reasonable. We have assumed without investigation that there has been no relevantchange or development between the dates as of which the information cited inthe preceding sentence was given and the date of this letter and that the informationupon which we have relied is accurate and does not omit disclosures necessaryto prevent such information from being misleading.  For purposes of each opinion in paragraph 1, we have reliedexclusively upon a certificate issued by the Secretary of State of the State ofDelaware, and such opinion is not intended to provide any conclusion orassurance beyond that conveyed by that certificate.

 

While we have notconducted any independent investigation to determine facts upon which ouropinions are based or to obtain information about which this letter advisesyou, we confirm that we do not have any actual knowledge which has caused us toconclude that our

 

55

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

 

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

 

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

 

56

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

 

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

 

You may rely upon thisletter only for the purpose served by the provision in the Purchase Agreementcited in the initial paragraph of this letter in response to which it has beendelivered.  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

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

 
|   | Sincerely,                 |
|--------|----------------------------|
|   |
|   |
|   | Kirkland &  Ellis |

 

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**EXHIBIT 8.6.1**

 

Schedule A

 

GeneralQualifications

 

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

 

# ARTICLEXIVBankruptcy 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 FederalBankruptcy 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 onipso facto and anti-assignment clauses and the coverage of pre-petitionsecurity agreements applicable to property acquired after a petition is filed;

##  

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

##  

## 14.3.state fraudulenttransfer and conveyance laws; and

##  

## 14.4.judicially developeddoctrines in this area, such as substantive consolidation of entities andequitable subordination.

##  

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

#  

## 15.1.governing theavailability of specific performance, injunctive relief or other equitableremedies, which generally place the award of such remedies, subject to certainguidelines, in the discretion of the court to which application for such reliefis made;

##  

## 15.2.affording equitabledefenses (e.g., waiver, laches and estoppel) against a party seekingenforcement;

##  

## 15.3.requiring good faithand fair dealing in the performance and enforcement of a contract by the partyseeking its enforcement;

##  

## 15.4.requiringreasonableness in the performance and enforcement of an agreement by the partyseeking enforcement of the contract;

 

----

 

## 15.5.requiringconsideration of the materiality of (i) a breach and (ii) theconsequences of the breach to the party seeking enforcement;

##  

## 15.6.requiringconsideration of the impracticability or impossibility of performance at thetime of attempted enforcement; and

##  

## 15.7.affording defensesbased upon the unconscionability of the enforcing party’s conduct after theparties have entered into the contract.

##  

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

#  

## 16.1.limit or affect theenforcement of provisions of a contract that purport to waive, or to requirewaiver of, the obligations of good faith, fair dealing, diligence andreasonableness;

##  

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

##  

## 16.3.limit theavailability of a remedy under certain circumstances where another remedy hasbeen elected;

##  

## 16.4.provide a timelimitation after which a remedy may not be enforced;

##  

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

##  

## 16.6.relate to the saleor disposition of collateral or the requirements of a commercially reasonablesale;

##  

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

##  

## 16.8.may, where less thanall of a contract may be unenforceable, limit the enforceability of the balanceof the contract to circumstances in which the unenforceable portion is not anessential part of the agreed exchange;

##  

## 16.9.govern and affordjudicial discretion regarding the determination of damages and entitlement toattorneys’ fees and other costs; or

##  

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

##  

# ARTICLEXVIIReferenced Provision Qualification. In addition, our opinions, insofar as they relate to the validity,binding effect or enforceability of a provision in the Purchase Agreementrequiring the Partnership to perform its obligations under, or to cause anyother person to perform its

 

A-2

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

 

A-3

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**EXHIBIT 8.6.1**

 

ScheduleB

 

Assumptions

 

For purposes of ourletter, we have relied, without investigation, upon each of the followingassumptions:

 

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

#  

# ARTICLEXVIIIThe Purchase Agreement constitute valid and binding obligations of yoursand are enforceable against you in accordance with their terms (subject toqualifications, exclusions and other limitations similar to those applicable toour letter).

#  

# ARTICLEXIXYou have satisfied those legal requirements that are applicable to you tothe extent necessary to entitle you to enforce the Purchase Agreement againstthe Partnership.

#  

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

#  

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

#  

# ARTICLEXXIIThe conduct of the parties to the Purchase Agreement has complied with anyrequirement of good faith, fair dealing and conscionability.

#  

# ARTICLEXXIIIYou have acted in good faith and without notice of any defense against theenforcement of any rights created by, or adverse claim to any property orsecurity interest transferred or created as part of, the Transactions.

#  

# ARTICLEXXIVThere are no agreements or understandings among the parties, written ororal, and there is no usage of trade or course or prior dealing among theparties that would, in either case, define, supplement or qualify the terms ofthe Purchase Agreement.

#  

# ARTICLEXXVThe constitutionality or validity of a relevant statute, rule, regulation oragency action is not in issue.

#  

# ARTICLEXXVIAll parties to the Transactions will act in accordance with, and willrefrain from taking any action that is forbidden by, the terms and conditionsof the Purchase Agreement.

#  

# ARTICLEXXVIIAll agreements other than the Purchase Agreement (if any) with respect towhich we have 

 

----

 

# providedadvice in our letter or reviewed in connection with our letter would beenforced as written.

#  

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

#  

# ARTICLEXXIXThe Partnership has obtained (and will in the future obtain) all permitsand governmental approvals required, and has taken (and will in the futuretake) all actions required, relevant to the consummation of the Transactions orperformance of the Purchase Agreement.

#  

# ARTICLEXXXAll information required to be disclosed in connection with any consent orapproval by the Partnership’s general partner or partners (or similar governingbodies) and all other information required to be disclosed in connection withany issue relevant to our opinions has in fact been fully and fairly disclosedto all persons to whom it is required to be disclosed.

 

B-2

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**EXHIBIT 8.6.1**

 

ScheduleC

 

ExcludedLaw and Legal Issues

 

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

 

# 2.                                       Federalsecurities laws and regulations (including the Investment Company Act of 1940and all other laws and regulations administered by the United States Securitiesand Exchange Commission), state “Blue Sky” laws and regulations, and laws andregulations relating to commodity (and other) futures and indices and othersimilar instruments;

#  

# ARTICLEXXXIpension and employee benefit laws and regulations (e.g., ERISA);

#  

# ARTICLEXXXIIFederal and state antitrust and unfair competition laws and regulations;

#  

# ARTICLEXXXIIIFederal and state laws and regulations concerning filing and noticerequirements other than requirements applicable to charter-related documentssuch as a certificate of merger;

#  

# ARTICLEXXXIVcompliance with fiduciary duty requirements;

#  

# ARTICLEXXXVthe statues and ordinances, the administrative decisions and the rules andregulations of counties, towns, municipalities and special politicalsubdivisions (whether created or enabled through legislative action at theFederal, state or regional level — e.g., water agencies, joint power districts,turnpike and tollroad authorities, rapid transit districts or authorities, andport authorities) and judicial decisions to the extent that they deal with anyof the foregoing;

#  

# ARTICLEXXXVIthe characterization of a transaction as one involving the creation of alien on real property or a security interest in personal property, thecharacterization of a contract as one in a form sufficient to create a lien ora security interest, the creation, attachment, perfection, priority orenforcement of a lien on real property or a security interest in personal propertyor matters involving ownership or title to any real or personal property;

#  

# ARTICLEXXXVIIfraudulent transfer and fraudulent conveyance laws;

#  

# ARTICLEXXXVIIIFederal and state environmental laws and regulations;

#  

# ARTICLEXXXIXFederal and state land use and subdivision laws and regulations;

#  

# ARTICLEXLFederal and state tax laws and regulations;

#  

# ARTICLEXLIFederal patent, trademark and copyright, state trademark, and other Federaland state intellectual

 

----

 

# propertylaws and regulations;

#  

# ARTICLEXLIIFederal and state racketeering laws and regulations (e.g., RICO);

#  

# ARTICLEXLIIIFederal and state health and safety laws and regulations (e.g., OSHA);

#  

# ARTICLEXLIVFederal and state labor laws and regulations;

#  

# ARTICLEXLVFederal and state laws, regulations and policies concerning(i) national and local emergency, (ii) possible judicial deference toacts of sovereign states, and (iii) criminal and civil forfeiture laws;

#  

# ARTICLEXLVIother Federal and state statutes of general application to the extent theyprovide for criminal prosecution (e.g., mail fraud and wire fraud statutes);

#  

# ARTICLEXLVIIany laws, regulations, directives and executive orders that prohibit orlimit the enforceability of obligations based on attributes of the partyseeking enforcement (e.g., the Trading with the Enemy Act and the InternationalEmergency Economic Powers Act); and

#  

# ARTICLEXLVIIIthe effect of any law, regulation or order which hereafter becomeseffective.

#  

We have not undertakenany research for purposes of determining whether the Partnership or any of theTransactions which may occur in connection with the Purchase Agreement issubject to any law or other governmental requirement other than to those lawsand requirements which in our experience would generally be recognized asapplicable in the absence of research by lawyers in New York, and none of ouropinions covers any such law or other requirement unless (i) one of ourDesignated Transaction Lawyers had actual knowledge of its applicability at thetime our letter was delivered on the date it bears and (ii) it is notexcluded from coverage by other provisions in our letter or in any Schedule toour letter.

 

C-2

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**EXHIBIT 8.6.2**

 

Schedule D

 

Excluded Provisions

 

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

 

# 3.                                       Covenantsnot to compete, including without limitation covenants not to interfere withbusiness or employee relations, covenants not to solicit customers, andcovenants not to solicit or hire employees.

 

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

 

# ARTICLEL Provisions mandating contribution towards judgments or settlements amongvarious parties.

 

ARTICLE LIWaivers of(i) legal or equitable defenses, (ii) rights to damages, (iii) rightsto 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 explicitlyallows waiver, (vii) broadly or vaguely stated rights, and (viii) otherbenefits to the extent they cannot be waived under applicable law.

 

ARTICLE LIIProvisions providingfor forfeitures or the recovery of amounts deemed to constitute penalties, orfor liquidated damages, acceleration of future amounts due (other thanprincipal) without appropriate discount to present value, late charges,prepayment charges, interest upon interest, and increased interest rates upondefault.

 

# ARTICLELIIITime-is-of-the-essence clauses.

 

# ARTICLELIVProvisions which provide a time limitation after which a remedy may not beenforced.

 

# ARTICLELVConfession of judgment clauses.

 

ARTICLE LVIAgreements to submitto 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 tojury trial; waiver of service of process requirements which would otherwise beapplicable; and provisions otherwise purporting to affect the jurisdiction andvenue of courts.

 

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

 

ARTICLE LVIIIProvisionsappointing one party as an attorney-in-fact for an adverse party or providingthat the decision of any particular person will be conclusive or binding onothers.

 

ARTICLE LIXProvisionspurporting to limit rights of third parties who have not consented thereto orpurporting to grant rights to third parties.

 

ARTICLE LXProvisions whichpurport to award attorneys’ fees solely to one party.

 

ARTICLE LXIArbitrationagreements.

 

ARTICLE LXIIProvisionspurporting to create a trust or constructive trust without compliance withapplicable trust law.

 

ARTICLE LXIIIProvisionsrelating to (i) insurance coverage requirements and (ii) theapplication of insurance proceeds and condemnation awards.

 

ARTICLE LXIVProvisions thatprovide for the appointment of a receiver.

 

ARTICLE LXVProvisions oragreements regarding proxies, shareholders agreements, shareholder votingrights, voting trusts, and the like.

 

ARTICLE LXVIConfidentialityagreements.

 

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

 

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

 

2

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**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 GeneralCounsel of the New York Branch of BNP PARIBAS, a banking corporation organizedunder 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 byBNP PARIBAS, of the Stock Purchase Agreement dated as of April 15, 2003 (the “PurchaseAgreement”), by and among Euramax International, Inc. (“Euramax”),Citigroup Venture Capital Partners, L.P. (the “Fund”), CVC ExecutiveFund LLC (the ”Executive Fund”), CVC/SSB Employee Fund, L.P. (the “EmployeeFund” and together with the Fund and the Executive Fund, the “Buyers”or “you”), CVC European Equity Partners, L. P., BNP PARIBAS and certainother stockholders of Euramax, pursuant to section 8.6 of the PurchaseAgreement.

 

Subject to the assumptions, qualifications, exclusions and otherlimitations which 

 

3

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

 

1.               BNP PARIBAS is acorporation duly organized and validly existing under the laws of the Republicof France.  BNP PARIBAS is duly licensedto maintain the New York Branch and the New York Branch has the power andauthority under such license to carry on a banking business in the State of NewYork and is duly established and existing under the laws of the State of NewYork.  BNP PARIBAS is the successor bymerger to Banque Paribas.

 

2.               BNP PARIBAS has thecorporate power to enter into and perform its obligations under the PurchaseAgreement.

 

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

 

4.               BNP PARIBAS hasduly executed and delivered the Purchase Agreement.

 

5.               The execution,delivery and performance of the Purchase Agreement by BNP PARIBAS does notviolate its certificate of incorporation.

 

6.               The PurchaseAgreement is a valid and binding obligation of BNP PARIBAS and is enforceableagainst BNP PARIBAS in accordance with its terms.

 

In preparing this letter, I have relied without any independentverification upon the assumptions recited in Schedule B to thisletter and upon:  (i) informationcontained 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 andcontained in corporate records; and (iv) factual information I haveobtained from such other sources as I have deemed reasonable.  I have assumed without investigation thatthere has been no relevant change or development between the dates as of whichthe information cited

 

4

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

 

While I have not conducted any independent investigation to determinefacts upon which our opinions are based or to obtain information about whichthis letter advises you, I confirm that I do not have any actual knowledgewhich has caused me to conclude that my reliance and assumptions cited in thepreceding paragraph are unwarranted or that any information supplied in thisletter is wrong.  The term “actualknowledge” whenever it is used in this letter means the conscious awarenessat the time this letter is delivered on the date it bears by the followinglawyer who has had significant involvement with negotiation or preparation ofthe Purchase Agreement  (herein called “DesignatedTransaction Lawyer”): Kenneth L. Spangler.

 

My advice on every legal issue addressed in this letter is basedexclusively on the internal law of New York and the federal law of the UnitedStates.  We advise you that issuesaddressed by this letter may be governed in whole or in part by other laws, butwe express no opinion as to whether any relevant difference exists between thelaws upon which our opinions are based and any other laws which may actually govern.  Our opinions are subject to allqualifications in Schedule A and do not cover or otherwise address anylaw or legal issue which is identified in the attached Schedule C or anyprovision in the Purchase Agreement of any type identified in Schedule D.  Provisions in the Purchase Agreement whichare not excluded by 

 

5

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

 

Our advice on each legal issue addressed in this letter represents ouropinion as to how that issue would be resolved were it to be considered by thehighest court of the jurisdiction upon whose law our opinion on that issue isbased.  The manner in which anyparticular issue would be treated in any actual court case would depend in parton facts and circumstances particular to the case, and this letter is notintended to guarantee the outcome of any legal dispute which may arise in thefuture.  It is possible that someRelevant Agreement Terms may not prove enforceable for reasons other than thosecited in this letter should an actual enforcement action be brought, but(subject to all the exceptions, qualifications, exclusions and otherlimitations contained in this letter) such unenforceability would not in ouropinion prevent you from realizing the principal benefits purported to beprovided 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 oradvice by reason of any fact about which our Designated Transaction Lawyer didnot have actual knowledge at that time, by reason of any change subsequent tothat time in any law covered by any of our opinions, or for any otherreason.  The attached schedules are anintegral part of this letter, and any term defined in this letter or anyschedule has that defined meaning wherever it is used in this letter or in anyschedule to this letter.

 

6

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

 
|   | Sincerely,                             |
|--------|----------------------------------------|
|   |                                   |
|   | Kenneth L. Spangler                    |
|   | Director and Associate General Counsel |

 

7

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**EXHIBIT 8.6.2**

 

Schedule A

 

General Qualifications

 

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

 

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

 

## 69.1.the FederalBankruptcy 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 onipso facto and anti-assignment clauses and the coverage of pre-petitionsecurity agreements applicable to property acquired after a petition is filed;

 

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

##  

## 69.3.state fraudulenttransfer and conveyance laws; and

##  

## 69.4.judicially developeddoctrines in this area, such as substantive consolidation of entities andequitable subordination.

 

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

##  

## 70.1.governing theavailability of specific performance, injunctive relief or other equitableremedies, which generally place the award of such remedies, subject to certainguidelines, in the discretion of the court to which application for such reliefis made;

##  

## 70.2.affording equitabledefenses (e.g., waiver, laches and estoppel) against a party seekingenforcement;

##  

## 70.3.requiring good faithand fair dealing in the performance and enforcement of a contract by the partyseeking its enforcement;

##  

## 70.4.requiringreasonableness in the performance and enforcement of an agreement by the partyseeking enforcement of the contract;

##  

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

##  

## 70.6.requiringconsideration of the impracticability or impossibility of performance at thetime of attempted enforcement; and

##  

## 70.7.affording defensesbased upon the unconscionability of the enforcing party’s conduct after theparties have entered into the contract.

 

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

##  

## 71.1.limit or affect theenforcement of provisions of a contract that purport to waive, or to requirewaiver of, the obligations of good faith, fair dealing, diligence andreasonableness;

##  

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

##  

## 71.3.limit theavailability of a remedy under certain circumstances where another remedy hasbeen elected;

##  

## 71.4.provide a timelimitation after which a remedy may not be enforced;

##  

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

##  

## 71.6.relate to the saleor disposition of collateral or the requirements of a commercially reasonablesale;

##  

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

##  

## 71.8.may, where less thanall of a contract may be unenforceable, limit the enforceability of the balanceof the contract to circumstances in which the unenforceable portion is not anessential part of the agreed exchange;

##  

## 71.9.govern and affordjudicial discretion regarding the determination of damages and entitlement toattorneys’ fees and other costs; or

##  

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

 

# ARTICLELXXIIReferenced Provision Qualification.  In addition, our opinions, insofar as they relate to thevalidity, binding effect or enforceability of a provision in the PurchaseAgreement requiring a party to perform its obligations under, or to cause anyother person to perform its obligations 

 

A-2

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# under,any provision (a “Referenced Provision”) of the Purchase Agreement orstating that any action will be taken as provided in or in accordance with anyprovision (also a “Referenced Provision”) of the Purchase Agreement, aresubject to the same qualifications as the corresponding opinion in this letterrelating to the validity, binding effect and enforceability of such ReferencedProvision.  Requirements in the PurchaseAgreement that provisions therein may only be waived or amended in writing maynot be enforceable to the extent that an oral agreement or an implied agreementby trade practice or course of conduct has been created modifying any suchprovision.

 

A-3

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**EXHIBIT 8.6.2**

 

Schedule B

 

Assumptions

 

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

 

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

 

# ARTICLELXXIIIThe Purchase Agreement constitute valid and binding obligations of yoursand are enforceable against you in accordance with their terms (subject toqualifications, exclusions and other limitations similar to those applicable toour letter).

 

# ARTICLELXXIVYou have satisfied those legal requirements that are applicable to you tothe extent necessary to entitle you to enforce the Purchase Agreement againstBNP PARIBAS.

 

# ARTICLELXXVEach document submitted to us for review is accurate and complete, eachsuch document that is an original is authentic, each such document that is acopy conforms to an authentic original, and all signatures (other than those ofor on behalf of the Partnership) on each such document are genuine.

 

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

 

# ARTICLELXXVIIThe conduct of the parties to the Purchase Agreement has complied withany requirement of good faith, fair dealing and conscionability.

 

# ARTICLELXXVIIIYou have acted in good faith and without notice of any defense againstthe enforcement of any rights created by, or adverse claim to any property orsecurity interest transferred or created as part of, the Transactions.

 

# ARTICLELXXIXThere are no agreements or understandings among the parties, written ororal, and there is no usage of trade or course or prior dealing among theparties that would, in either case, define, supplement or qualify the terms ofthe Purchase Agreement.

 

# ARTICLELXXXThe constitutionality or validity of a relevant statute, rule, regulationor agency action is not in issue.

 

# ARTICLELXXXIAll parties to the Transactions will act in accordance with, and willrefrain from taking any action that is forbidden by, the terms and conditionsof the Purchase Agreement.

 

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# ARTICLELXXXIIAll agreements other than the Purchase Agreement (if any) with respect towhich we have provided advice in our letter or reviewed in connection with ourletter would be enforced as written.

 

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

 

# ARTICLELXXXIVBNP PARIBAS has obtained (and will in the future obtain) all permits andgovernmental approvals required, and has taken (and will in the future take)all actions required, relevant to the consummation of the Transactions orperformance of the Purchase Agreement.

 

# ARTICLELXXXVAll information required to be disclosed in connection with any consent orapproval by BNP PARIBAS and all other information required to be disclosed inconnection with any issue relevant to our opinions has in fact been fully andfairly disclosed to all persons to whom it is required to be disclosed.

 

B-2

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**EXHIBIT 8.6.2**

 

Schedule C

 

Excluded Law And Legal Issues

 

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

 

# 5.                                       Federalsecurities laws and regulations (including the Investment Company Act of 1940and all other laws and regulations administered by the United States Securitiesand Exchange Commission), state “Blue Sky” laws and regulations, and laws andregulations relating to commodity (and other) futures and indices and othersimilar instruments;

 

# ARTICLELXXXVIpension and employee benefit laws and regulations (e.g., ERISA);

 

# ARTICLELXXXVIIFederal and state antitrust and unfair competition laws and regulations;

 

# ARTICLELXXXVIIIFederal and state laws and regulations concerning filing and noticerequirements other than requirements applicable to charter–related documentssuch as a certificate of merger;

 

# ARTICLELXXXIXcompliance with fiduciary duty requirements;

 

# ARTICLEXCthe statues and ordinances, the administrative decisions and the rules andregulations of counties, towns, municipalities and special politicalsubdivisions (whether created or enabled through legislative action at theFederal, state or regional level — e.g., water agencies, joint power districts,turnpike and tollroad authorities, rapid transit districts or authorities, andport authorities) and judicial decisions to the extent that they deal with anyof the foregoing;

 

# ARTICLEXCIthe characterization of a transaction as one involving the creation of alien on real property or a security interest in personal property, thecharacterization of a contract as one in a form sufficient to create a lien ora security interest, the creation, attachment, perfection, priority orenforcement of a lien on real property or a security interest in personalproperty or matters involving ownership or title to any real or personalproperty;

 

# ARTICLEXCIIfraudulent transfer and fraudulent conveyance laws;

 

# ARTICLEXCIIIFederal and state environmental laws and regulations;

 

# ARTICLEXCIVFederal and state land use and subdivision laws and regulations;

 

# ARTICLEXCVFederal and state tax laws and regulations;

 

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# ARTICLEXCVIFederal patent, trademark and copyright, state trademark, and other Federaland state intellectual property laws and regulations;

 

# ARTICLEXCVIIFederal and state racketeering laws and regulations (e.g., RICO);

 

# ARTICLEXCVIIIFederal and state health and safety laws and regulations (e.g., OSHA);

 

# ARTICLEXCIXFederal and state labor laws and regulations;

 

# ARTICLECFederal and state laws, regulations and policies concerning (i) nationaland local emergency, (ii) possible judicial deference to acts of sovereignstates, and (iii) criminal and civil forfeiture laws;

 

# ARTICLECIother Federal and state statutes of general application to the extent theyprovide for criminal prosecution (e.g., mail fraud and wire fraud statutes);

 

# ARTICLECIIany laws, regulations, directives and executive orders that prohibit orlimit the enforceability of obligations based on attributes of the partyseeking enforcement (e.g., the Trading with the Enemy Act and the InternationalEmergency Economic Powers Act); and

 

# ARTICLECIIIthe effect of any law, regulation or order which hereafter becomeseffective.

 

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

 

C-2

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Schedule D

Excluded Provisions

 

# 6.                                       Noneof the opinions in the letter to which this Schedule is attached covers orotherwise addresses any of the following types of provisions which may becontained in the Purchase Agreement:.

 

# ARTICLECIVCovenants not to compete, including without limitation covenants not tointerfere with business or employee relations, covenants not to solicitcustomers, and covenants not to solicit or hire employees.

 

# ARTICLECVIndemnification for negligence, willful misconduct or other wrongdoing orstrict product liability or any indemnification for liabilities arising undersecurities laws.

 

# ARTICLECVIProvisions mandating contribution towards judgments or settlements amongvarious parties.

 

# ARTICLECVIIWaivers of (i) legal or equitable defenses, (ii) rights todamages, (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 explicitlyallows waiver, (vii) broadly or vaguely stated rights, and(viii) other benefits to the extent they cannot be waived under applicablelaw.

 

# ARTICLECVIIIProvisions providing for forfeitures or the recovery of amounts deemed toconstitute penalties, or for liquidated damages, acceleration of future amountsdue (other than principal) without appropriate discount to present value, latecharges, prepayment charges, interest upon interest, and increased interestrates upon default.

 

# ARTICLECIXTime-is-of-the-essence clauses.

 

# ARTICLECXProvisions which provide a time limitation after which a remedy may not beenforced.

 

# ARTICLECXIConfession of judgment clauses.

 

# ARTICLECXIIAgreements to submit to the jurisdiction of any particular court or othergovernmental authority (either as to personal jurisdiction and subject matterjurisdiction); provisions restricting access to courts; waiver of the right tojury trial; waiver of service of process requirements which would otherwise beapplicable; and provisions otherwise purporting to affect the jurisdiction andvenue of courts.

 

# ARTICLECXIIIProvisions that attempt to change or waive rules of evidence or fix themethod or quantum of

 

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# proofto be applied in litigation or similar proceedings.

 

# ARTICLECXIVProvisions appointing one party as an attorney-in-fact for an adverse partyor providing that the decision of any particular person will be conclusive orbinding on others.

 

# ARTICLECXVProvisions purporting to limit rights of third parties who have notconsented thereto or purporting to grant rights to third parties.

 

# ARTICLECXVIProvisions which purport to award attorneys’ fees solely to one party.

 

# ARTICLECXVIIArbitration agreements.

 

# ARTICLECXVIIIProvisions purporting to create a trust or constructive trust withoutcompliance with applicable trust law.

 

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

 

# ARTICLECXXProvisions that provide for the appointment of a receiver.

 

# ARTICLECXXIProvisions or agreements regarding proxies, shareholders agreements,shareholder voting rights, voting trusts, and the like.

 

# ARTICLECXXIIConfidentiality agreements.

 

# ARTICLECXXIIIProvisions in the Purchase Agreement requiring BNP PARIBAS to perform itsobligations under, or to cause any other person to perform its obligationsunder, or stating that any action will be taken as provided in or in accordancewith, any agreement or other document.

 

# ARTICLECXXIVProvisions, if any, which are contrary to the public policy of anyjurisdiction.

 

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