Exhibit 5.3
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, New York 10022-4675
To Call Writer Direct:
212 446-4800
February 4, 1997
Euramax International plc
Euramax Holdings plc
Euramax Holdings, B.V
Amerimax Holdings, Inc.
5535 Triangle Parkway
Norcross, Georgia 30092
Re: Registration Statement on Form S-4
Euramax International plc
Euramax Holdings plc
Euramax Holdings, B.V
Amerimax Holdings, Inc.
File No. 333-5878
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Gentlemen:
We have acted as special United States counsel to Euramax
International plc, a corporation formed under the laws of England and Wales (the
"COMPANY"), Euramax European Holdings plc, a corporation formed under the laws
of England & Wales ("EURAMAX U.K."), Euramax European Holdings, B.V. a
corporation formed under the laws of The Netherlands ("EURAMAX B.V." and,
together with the Company and Euramax UK., the "ISSUERS"), and Amerimax
Holdings, Inc., a Delaware corporation (the "GUARANTOR"), in connection with the
proposed registration under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), of $135,000,000 principal amount of 11 1/4% Senior
Subordinated Notes due 2006 (the "NEW NOTES") for the purpose of effecting an
exchange offer (the "EXCHANGE OFFER") for the Issuers' 11 1/4% Senior
Subordinated Notes due 2006 which have not been registered under the Securities
Act (the "OLD NOTES"). The New Notes will be issued pursuant to a Senior
Subordinated Indenture, dated as of September 25, 1996, by and among the
Issuers, the Guarantor and The Chase Manhattan Bank, as Trustee (the
"INDENTURE"). Capitalized terms used herein but not defined herein have the
meaning set forth in the Preliminary Prospectus of the Issuers dated as of the
date hereof.
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In connection therewith, we have examined and relied upon the
assumptions set forth in SCHEDULE A to this letter and upon the original, or
copies certified or otherwise identified to our satisfaction, of (i) corporate
organizational documents of the Issuers and the Guarantor; (ii) minutes and
records of the corporate proceedings of the Issuers and the Guarantor with
respect to the issuance and sale of the New Notes and the Guarantee; (iii) the
Registration Statement and exhibits thereto; (iv) the Indenture; (v) the
Deposit Agreement; and (vi) such other documents, corporate records and other
instruments as we have deemed necessary for the expression of the opinions
contained herein. We have assumed without investigation that there has been no
relevant change or development between the dates as of which the information
cited in the preceding sentence was given and the date of this letter and that
the information upon which we have relied is accurate and does not omit
disclosures necessary to prevent such information from being misleading.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies, and the authenticity of the originals of
all documents submitted to us as copies. We have also assumed the genuineness
of the signatures of persons signing all documents in connection with which this
opinion is rendered, the authority of such persons signing on behalf of the
parties thereto other than the Guarantor, and the due authorization, execution
and delivery of all documents by the parties thereto other than the Guarantor.
We have also assumed that none of the Issuers or the Guarantor are subject to
any law or regulation limiting the enforceability of the Indenture, the Deposit
Agreement, the Notes or the Guarantee other than the laws of the State of New
York and the General Corporation Law of the State of Delaware.
With respect to the Company and Euramax U.K., based solely upon our
review of the letter from Dibb Lupton Alsop, dated January 16, 1997 and set
forth as Exhibit 5.1 to the Registration Statement and with respect to
Euramax B.V. (collectively with the Company and Euramax U.K., the "Foreign
Issuers"), based solely upon our review of the letter from Nauta Dutilh,
dated January 14, 1997 and set forth as Exhibit 5.2 to the Registration
Statement, all of the opinions contained in this letter with respect to each
of the Foreign Issuers are subject to the assumptions that, under the laws
their jurisdictions of incorporation, each of the Foreign Issuers: (i) is
duly organized, validly existing and in good standing, (ii) has full
corporation or organization power and authority to execute, deliver and
perform its obligations under the Indenture, the Deposit Agreement and the
Notes, (iii) has duly authorized by all necessary corporate action the
execution, delivery and performance of the Indenture, the Deposit Agreement
and the Notes, (iv) has duly executed and delivered the Indenture, the
Deposit Agreement and the Notes and (v) is not subject to any law or
regulation limiting the enforceability of the Indenture, the Deposit
Agreement or the Notes against it.
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Subject to the further assumptions, qualifications, exclusions and
other limitations which are identified in this letter and in the schedules
attached to this letter, we advise you that:
(1) The Guarantor is validly existing and in good standing under the
laws of the State of Delaware.
(2) The Guarantee has been validly authorized by the Guarantor.
(3) When, as and if (i) the Registration Statement shall have become
effective pursuant to the provisions of the Securities Act, (ii) the Indenture
shall have been qualified pursuant to the provisions of the Trust Indenture Act
of 1939, as amended, (iii) the Old Notes shall have been validly tendered to the
Issuers and (iv) the New Notes shall have been issued in the form and containing
the terms described in the Registration Statement, the Indenture, the
resolutions of each of the Issuers' and the Guarantor's Board of Directors
authorizing the foregoing and any legally required consents, approvals,
authorizations and other order of the Commission and any other regulatory
authorities to be obtained, the New Notes when issued pursuant to the Exchange
Offer will be legally issued, fully paid and nonassessable and will constitute
valid and binding obligations of the Issuers and the Guarantee will constitute
the valid and binding obligation of the Guarantor.
Our advice on every legal issue addressed in this letter is subject to
the General Qualifications that are recited in SCHEDULE B to this Letter.
We express no opinion as to, or the effect or applicability of, any
laws other than the laws of the State of New York and the General Corporation
Law of the State of Delaware. Our advice on every legal issue addressed in
this letter is based exclusively on such laws. We express no opinion with
respect to the applicability thereto, or the effect thereon, of the laws of
any other jurisdiction or as to any matters of municipal law or the laws of
any other local agencies within the state, and we express no opinion as to
whether any relevant differences exist between the laws upon which our
opinions are based and any such other laws which may be applicable. Our
opinions do not cover or otherwise address any provision in the Indenture,
the Deposit Agreement, the Notes or the Guarantee of a kind identified in
SCHEDULE C. Provisions in the Indenture which are not excluded by SCHEDULE
C or any other part of this letter or its attachments are called the
"RELEVANT AGREEMENT TERMS."
Our advice on each legal issue addressed in this letter represents our
opinion as to how that issue would be resolved were it to be considered by the
highest court of the jurisdiction
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upon whose law our opinion on that issue is based. The manner in which any
particular issue would be treated in any actual court case would depend in part
on facts and circumstances particular to the case, and this letter is not
intended to guarantee the outcome of any legal dispute which may arise in the
future. It is possible that some Relevant Agreement Terms may not prove
enforceable for reasons other than those cited in this letter should an actual
enforcement action be brought, but (subject to all the exceptions,
qualifications, exclusions and other limitations contained in this letter) such
unenforceability would not in our opinion prevent you from realizing the
principal benefits purported to be provided by the Relevant Agreement Terms.
This letter speaks as of the time of its delivery on the date it
bears. We do not assume any obligation to provide you with any subsequent
opinion or advice by reason of any fact of which the lawyers in our firm who
have had significant involvement with the negotiation and preparation of the
Indenture (to wit, Lance C. Balk, Steven G. Martin and J. Scott Schlossel,
herein called the "DESIGNATED TRANSACTION LAWYERS") did not have actual
knowledge as of the date hereof, by reason of any change subsequent to the date
hereof in any law covered by any of our opinions, or for any other reason. The
attached schedules are an integral part of this letter, references herein or
therein to this letter include such schedules, and any term defined in this
letter or any schedule has that defined meaning wherever it is used in this
letter or in any schedule to this letter.
While we have not conducted any independent investigation to determine
facts upon which our opinions are based or to obtain information about which
this letter advises you, we confirm that we do not have any actual knowledge
which has caused us to conclude that our reliance and assumptions cited in the
preceding paragraph are unwarranted. The term "actual knowledge" whenever it is
used in this letter with respect to our firm means conscious awareness at the
time this letter is delivered on the date it bears by the Designated Transaction
Lawyers.
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We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
titled "Legal Matters" in the Prospectus which is part of the Registration
Statement.
We do not find it necessary for purposes of this opinion, and
accordingly do not purport to cover herein, the application of the securities or
"Blue Sky" laws of the various states to issuance of the New Notes.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes.
Yours very truly,
KIRKLAND & ELLIS
SCHEDULE A
ASSUMPTIONS
For purposes of the letter to which this Schedule is attached ("OUR
LETTER"), we have relied, without investigation, upon each of the following
assumptions:
(a) Each document submitted to us for review is accurate and complete, each
such document that is an original is authentic, each such document that is
a copy conforms to an authentic original, and all signatures on each such
document are genuine.
(b) There has not been any mutual mistake of fact or misunderstanding, fraud,
duress or undue influence.
(c) The constitutionality or validity of a relevant statute, rule, regulation
or agency action is not in issue.
(d) None of the Issuers or the Guarantor are subject to any law or regulation,
other than laws of the State of New York or the General Corporate Law of
the State of Delaware limiting the enforceability of the Indenture, the
Deposit Agreement, the Notes or the Guarantee against the Issuers or the
Guarantor.
SCHEDULE B
GENERAL QUALIFICATIONS
The term "General Qualifications" as used in the letter to which this
Schedule is attached ("our letter") means the Bankruptcy and Insolvency
Exception, the Equitable Principles Limitation and the Other Common
Qualifications set forth in this Schedule.
BANKRUPTCY AND INSOLVENCY EXCEPTION. Each of the opinions ("our opinions")
in our letter is subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws of general
applicability relating to or affecting the enforcement of creditors' rights
from time to time in effect and to general principles of equity (regardless
of whether enforcement is considered in proceedings at law or in equity).
This exception includes:
(a) the Federal Bankruptcy Code and thus comprehends, among others,
matters of turn-over, automatic stay, avoiding powers, fraudulent
transfer, preference, discharge, conversion of a non-recourse
obligation into a recourse claim, limitations on IPSO FACTO and anti-
assignment clauses and the coverage of pre-petition security
agreements applicable to property acquired after a petition is filed;
(b) all other Federal and state bankruptcy, insolvency, reorganization,
receivership, moratorium, arrangement and assignment for the benefit
of creditors laws that affect the rights of creditors generally or
that have reference to or affect only creditors of specific types of
debtors;
(c) state fraudulent transfer and conveyance laws; and
(d) judicially developed doctrines relevant to any of the foregoing laws,
such as substantive consolidation of entities.
EQUITABLE PRINCIPLES LIMITATION. Each of our opinions is subject to the
effect of general principles of equity, whether applied by a court of law
or equity. This limitation includes principles:
(a) governing the availability of specific performance, injunctive relief
or other equitable remedies, which generally place the award of such
remedies, subject to certain guidelines, in the discretion of the
court to which application for such relief is made;
(b) imposing duties and standard of conduct upon creditors;
(c) affording equitable defenses (e.g., waiver, laches and estoppel)
against a party seeking enforcement;
(d) requiring good faith and fair dealing in the performance and
enforcement of a contract by the party seeking its enforcement;
(e) requiring reasonableness in the performance and enforcement of an
agreement by the party seeking enforcement of the contract;
(f) requiring consideration of the materiality of (i) a breach and (ii)
the consequences of the breach to the party seeking enforcement;
(g) requiring consideration of the impracticability or impossibility of
performance at the time of attempted enforcement; and
(h) affording defenses based upon the unconscionability of the enforcing
party's conduct after the parties have entered into the contract.
COMMON QUALIFICATIONS. Each of our opinions is subject to the effect of
rules of law that:
(a) limit or affect the enforcement of provisions of a contract that
purport to waive, or to require waiver of, the obligations of good
faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection clauses in contracts are not necessarily
binding on the court(s) in the forum selected;
(c) limit the availability of a remedy under certain circumstances where
another remedy has been elected;
(d) provide a time limitation after which a remedy may not be enforced;
(e) limit the right of a creditor to use force or cause a breach of the
peace in enforcing rights;
(f) limit or affect the enforceability of provisions releasing,
exculpating or exempting a party from, or requiring indemnification of
a party for, liability for its own action or inaction, to the extent
the action or inaction involves gross negligence, recklessness,
willful misconduct, unlawful conduct, violation of public policy or
litigation against another party determined adversely to such party;
(g) may, where less than all of a contract may be unenforceable, limit the
enforceability of the balance of the contract to circumstances in
which the unenforceable portion is not an essential part of the agreed
exchange;
(h) govern and afford judicial discretion regarding the determination of
damages and entitlement to attorneys' fees and other costs;
(i) may permit a party that has materially failed to render or offer
performance required by the contract to cure that failure unless (i)
permitting a cure would unreasonably hinder the aggrieved party from
making substitute arrangements for performance, or (ii) it was
important in the circumstances to the aggrieved party that performance
occur by the date stated in the contract.
(j) limit or affect the enforceability of provisions in the Indenture and
the New Notes deemed to impose the payment of interest;
(k) limit or affect the enforceability of requirements in the Indenture
and the New Notes specifying that the provisions thereof may only be
waived in writing to the extent that an oral or implied agreement by
trade practice or course of conduct has been created modifying any
provision of such documents;
(l) limit or affect the enforceability of indemnification or contribution
obligations which contravene public policy, including, without
limitation, indemnification or contribution obligations which arise
out of failure to comply with applicable state or federal securities
law;
(m) limit or affect the enforceability of cumulative remedies to the
extent such cumulative remedies purport to or would have the effect of
compensating the party entitled to the benefits thereof in excess of
the actual loss suffered by such party;
(n) limit the recovery of legal fees and legal expenses by an indemnified
person to reasonable attorneys' fees and legal expenses;
OTHER QUALIFICATIONS. Each of our opinions is subject to the following
other qualifications:
(a) our opinion as to the binding effect of the Indenture and the
Guarantee with respect to the Guarantor is subject to the effect of
laws and judicial decisions which have imposed duties and standards of
conduct upon creditors;
(b) provisions of any document or agreement which permit a party to take
any action, to make any determination, or to benefit from indemnities
and similar undertakings may be subject to a requirement that such
action be taken or such determination be made or that any action or
inaction by any party that may give rise to a request for payment
under an such undertaking be taken or not taken, as the case may be,
on a reasonable basis and in good faith;
(c) a substantial body of case law treats guarantors as "debtors" under
the Uniform Commercial Code (as enacted in the State of New York) (the
"Code") thereby according guarantor the rights and remedies of debtors
established by the Code;
(d) we express no opinion as to the binding effect of the indemnification
or contribution provisions of any document or agreement, insofar as
said provisions might require indemnification or contribution with
respect to any litigation by any indemnified person under an agreement
against the Issuers or the Guarantor determined adversely to such
indemnified person under such agreement or with respect to any loss,
cost or expense arising out of an indemnified person's negligence or
willful misconduct or an violation by such indemnified person of any
statutory duties, general principles of equity or public policy;
(e) waivers of equitable rights and defenses may not be valid, binding and
enforceable under New York law;
(f) we express no opinion with respect to the waivers set forth in any
document or agreement insofar as they might not be broad enough to
cover all situations which might arise for which a waiver could be
found desirable; and
(g) certain rights, remedies and waivers contained in the Indenture may be
rendered ineffective, or limited by, applicable laws or judicial
decisions (other than those reflected in the foregoing qualifications
and assumptions) governing such provisions, but such laws and judicial
decisions do not, in our opinion, make the Indenture inadequate for
the practical realization of the security provided by the Guarantee;
SCHEDULE C
EXCLUDED PROVISIONS
None of the opinions in the letter to which this Schedule is attached
covers or otherwise addresses any of the following kinds of provisions which may
be contained in the Indenture, the Deposit Agreement, the Notes or the Guarantee
(Section references are to sections contained in the Indenture):
1. Provisions constituting penalties, or for liquidated damages, acceleration
of future amounts due (other than principal) without appropriate discount
to present value, late charges, prepayment charges or increased interest
rates upon default. (Definition of 'Additional Interest'; Section 2.15).
2. Provisions that contain a waiver of (i) broadly or vaguely stated rights,
(ii) the benefits of statutory, regulatory, or constitutional rights,
unless and to the extent the statute, regulation, or constitution
explicitly allows waiver, (iii) unknown future defenses, (iv) rights to
damages, (v) statutes of limitations, and (vi) other benefits to the extent
they cannot be waived under applicable law. (Section 4.13).
3. Provisions which purport to award attorneys' fees solely to one party.
(Section 6.11).
4. Indemnification provisions of the Indenture insofar as said provisions
contravene public policy or might require indemnification of, or payments
to, any party with respect to any litigation by such party against any of
the Issuers or the Guarantor determined adversely to
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such party, of any loss, cost or expense arising of any violation by such
party of statutory duties, general principles of equity or public policy.
(Section 7.07).
5. Provisions purporting to limit rights of third parties who have not
consented thereto or purporting to grant rights to third parties. (Section
10.01).
6. Provisions providing for forfeitures or the recovery of amounts deemed to
constitute penalties. (Section 2.15).
7. Provisions, if any, which are contrary to the public policy of any
jurisdiction to any extent that they are also contrary to the public policy
of the State of New York. (Section 4.13).
8. Waivers of the right to trial by jury, agreements to submit to the
jurisdiction of any particular court or other governmental authority,
waivers of the right to assert forum nonconveniens, and other such waivers.
(Section 13.14).
9. Provisions in the Indenture providing that any or all of the obligations
thereunder are valid notwithstanding the invalidity of any other provisions
in that agreement or in any other Transaction Agreement. (Section 11.02;
Section 13.11).
10. Provisions that provide for the appointment of a receiver, provisions
appointing one party as an attorney-in-fact for an adverse party,
provisions which provide a time limitation after which a remedy may not be
enforced, and forum selection clauses and consent to jurisdiction clauses
(both as to personal jurisdiction and subject matter jurisdiction).
(Section 13.14).
11. Choice-of-law provisions, except to the extent a party brings an action to
enforce the Indenture, the Deposit Agreement, the Guarantee or the Notes in
a New York state court. (Section 13.14).
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