AGREEMENT OF LIMITED PARTNERSHIP OF NEW ALENCO EXTRUSION, LTD.
EXHIBIT 3.40
AGREEMENT
OF
LIMITED
PARTNERSHIP
OF
NEW
ALENCO
EXTRUSION,
LTD.
PARTNERSHIP
INTERESTS IN NEW ALENCO EXTRUSION, LTD. HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED UNLESS SUBSEQUENTLY
REGISTERED UNDER SUCH ACTS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. THIS AGREEMENT CONTAINS ADDITIONAL RESTRICTIONS ON SALES
AND OTHER TRANSFERS OF PARTNERSHIP INTERESTS.
AGREEMENT
OF LIMITED PARTNERSHIP
OF
NEW
ALENCO EXTRUSION, LTD.
THIS
AGREEMENT OF LIMITED PARTNERSHIP OF NEW ALENCO EXTRUSION, LTD. is made and
entered into by and between Alenco Extrusion Management, L.L.C. (the “General Partner”),
and Alenco Interests. L.L.C. (the “Limited
Partner”).
ARTICLE
1
ORGANIZATION
1.1 Formation and
Name. For and in consideration of the agreements contained
herein, the parties hereto do hereby agree to the formation of a limited
partnership under the Act to be known as New Alenco Extrusion, Ltd. Upon
execution of this Agreement by all parties listed on the signature page, the
General Partner shall file a Certificate of Limited Partnership with the Texas
Secretary of State. The rights, duties and liabilities of the
Partners shall be as provided in the Act, except as otherwise provided
herein.
1.2 Location of Principal Place of
Business. The principal place of business of the Partnership
shall be ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other
place as the General Partner may from time to time designate. The
Partnership may maintain other offices or such other places as the General
Partner deems appropriate.
1.3 Business and
Purpose. The business and purpose of the Partnership shall be
to conduct any lawful activities permitted under the Act.
1.4 Term. The term of
the Partnership shall begin on the effective date of its Certificate of Limited
Partnership and shall continue indefinitely thereafter, unless sooner terminated
as hereinafter provided.
1.5 Filing of
Certificates. The General Partner shall execute, file and
publish all certificates, notices, statements or other instruments required by
law for the formation or operation of a limited partnership in all jurisdictions
where the Partnership may propose to do business. The General Partner
may amend the Certificate of Limited Partnership from time to time for any
proper purpose.
1.6 Partnership
Interests.
(a) The
General Partner shall accept initial contributions from the Limited Partner as
specified in Section 2.1 hereof in exchange for a Partnership Interest of
ninety-nine and nine-tenths of one percent (99.99%).
(b) The
General Partner shall make an initial contribution as specified in Section 2.2
hereto in exchange for a Partnership Interest of one-tenth of one percent
(0.10%).
2
1.7 Additional Limited
Partners. In the case of a person acquiring a Partnership
Interest directly from the Partnership, such person shall become a Limited
Partner only if (a) his purchase offer is accepted by the Partnership, as
evidenced by countersignature of the General Partner, and (b) he executes and
delivers to the General Partner an executed copy of this Agreement, together
with any other documentation that may be required by the General
Partner.
1.8 Amendment. This
Agreement shall be amended only upon the unanimous written consent of all
Partners.
ARTICLE
2
CAPITALIZATION
AND ADDITIONAL FINANCING
2.1 Limited Partners’ Initial
Contributions. The initial contribution of the Limited Partner
shall consist of Ten Dollars ($10.00).
2.2 General Partner’s Initial
Contributions. The initial contribution of the General Partner
shall consist of One Dollar ($1.00).
2.3 Partnership
Borrowing.
(a) The
General Partner may cause the Partnership to borrow money from time to time,
from third parties or from the General Partner, and may mortgage or pledge
Partnership property to obtain and secure the repayment of such
loans. The proceeds of Partnership loans may be used for any
Partnership purpose.
(b) The
General Partner is not, however, obligated to lend funds to the
Partnership. If the General Partner loans money to the Partnership,
it will receive interest at the lesser of (i) two (2) percentage points over the
fluctuating per annum rate of interest reported in the Wall Street Journal as the
“Prime Rate” or (ii) the maximum lawful rate that may be charged under
applicable state or federal law. Loans by the General Partner to the
Partnership shall be treated as indebtedness to a non-Partner lender and will be
payable prior to any distributions to the Limited Partner.
2.4 Additional
Financing. No Limited Partner shall be required lo make any
contribution to the capital of the Partnership other than his initial
contribution pursuant to Section 2.1. This provision shall not be
deemed a limitation, however, on the General Partner’s right to cause the
Partnership to borrow or to retain, use or pledge so much of the undistributed
revenues and other assets of the Partnership as in its reasonable opinion may be
required to provide for the Partnership’s anticipated future cash needs
(including contingencies), or to repay amounts borrowed.
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2.5 Revenues. Any or
all revenues received by the Partnership may be accumulated and retained in the
Partnership for any Partnership purpose including, but not limited to, the costs
of partnership expenses or the repayment of borrowing by the
Partnership.
2.6 Partnership
Capital.
(a) No
interest shall be paid by the Partnership on any capital contributions to the
Partnership or on capital account balances.
(b) No
Partner shall have the right to withdraw any part of his capital contribution to
the Partnership or his capita] account, or to receive any return of any portion
of his capital contribution or his capital account, except as may be
specifically provided in this Agreement.
(c) Loans
from a Partner to the Partnership shall not be considered capital
contributions.
2.7 No Capital
Accounts. Since the Partnership becomes a disregarded entity
at the effective time of this Agreement, no capital accounts will be maintained
for the Partners except as required by the Act.
ARTICLE
3
ALLOCATIONS
AND DISTRIBUTIONS
3.1 Allocations. Except
as otherwise provided in this Agreement, all Profits and Losses shall be
allocated among the Partners in proportion to their Partnership
Interests.
3.2 Distributions.
(a) The
Partnership shall distribute to the Partners cash which in the opinion of
either: (i) the General Partner or (ii) Limited Partners holding a
Required Interest, is not advisable to be retained.
(b) All
distributions of cash or property (other than distributions in connection with
the dissolution and liquidation of the Partnership) shall be allocated among the
Partners in the same proportion as the Partners are entitled to share in net
income from the Partnership as set forth in Section 3.1.
(c) Distributions
in connection with the termination and liquidation of the Partnership shall be
allocated among the Partners as provided in Section 83.
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3.3 Tax Status. The
Partnership is a disregarded entity for federal income tax purposes, and all tax
related allocations are omitted.
ARTICLE
4
RIGHTS
AND DUTIES OF THE GENERAL PARTNER
4.1 Management. Except
as otherwise provided in this Agreement but consistent with the General
Partner’s fiduciary responsibility for the safekeeping and use of Partnership
property, the General Partner shall have the full and exclusive power and
authority on behalf of the Partnership to manage, control, administer and
operate the business and affairs of the Partnership, and to do or cause to be
done any and all acts which it deems to be necessary or appropriate thereto, and
the scope of such power and authority shall encompass all matters in any way
connected with or incident to such business, including, but not limited to, the
power and authority:
(a) to expend
the Partnership’s capital and revenues in furtherance of the business of the
Partnership;
(b) to borrow
monies from time to time in the form of recourse or non-recourse borrowings or
otherwise to draw, make, execute and issue promissory notes and other negotiable
or non-negotiable instruments and evidences of indebtedness, and to secure the
payment of the sums so borrowed and to mortgage, pledge, or assign in trust all
or any part of the Partnership’s property;
(c) to employ
or retain on behalf of the Partnership agents, employees, consultants,
accountants, lawyers, appraisers, engineers, surveyors, land planners,
architects, clerical personnel, and such other assistance and services as may be
necessary or convenient;
(d) to ▇▇▇
and be sued, complain and defend in the name and on behalf of the Partnership
and enter into such agreements, receipts, releases, and discharges with respect
to any such matters as the General Partner deems advisable;
(e) to make
such classifications, determinations and allocations as are deemed advisable,
having due regard for relevant generally accepted accounting
standards;
(f) to
purchase insurance, or extend the General Partner’s or its Affiliates’
insurance, at the Partnership’s expense, to protect the Partnership property and
the business of the Partnership against loss, and to protect the Partners
against liability to third parties arising out of Partnership activities, such
insurance, if any, to be in such limits, subject to such deductibles and to
cover such risks as the General Partner deems appropriate;
5
(g) to appear
and transact business before regulatory authorities, make any and all
applications, filings, submittals, reports, notices or take any other action
needed on behalf of the Partnership to effect regulatory matters for Partnership
activities; and
(h) to enter
into, perform and carry out contracts, agreements and to do any other acts and
things necessary, appropriate or incidental to the accomplishment of the
purposes of the Partnership.
4.2 Reliance by
Public.
(a) In order
to expedite the handling of the Partnership’s business and affairs, it is
understood and agreed that any action taken, or document delivered, by the
General Partner while acting in the name and on behalf of the Partnership shall
be deemed to be the action of the Partnership as any third parties (including
all Limited Partners or their assignees as third parties for such
purpose). Any person dealing with the Partnership or the General
Partner shall be entitled to rely upon a certificate of the General Partner as
to:
(i) the
identity of the Partners;
(ii) the
existence or nonexistence of any fact or facts that constitute conditions
precedent to acts by the parry delivering or receiving such certificate or which
are in any other manner related to the affairs of the Partnership;
(iii) the
persons who are authorized to execute and deliver any instrument or document of
the Partnership;
(iv) any act
or failure to act by the Partnership; or
(v) any other
matter whatsoever involving the Partnership or any Partner.
(b) Notwithstanding
any other provision of this Agreement to the contrary, no lender or purchaser
shall be required to look to the application of proceeds hereunder or to verify
any representation by the General Partner. Any such lender or
purchaser shall be entitled to rely exclusively on the representations of the
General Partner as to its authority to enter into such financing or sale
arrangements and shall be entitled to deal with the General Partner, as if it
were the sole party in interest therein, both legally and
beneficially.
4.3 Restrictions on Authority of General
Partner. Notwithstanding any other provision of this Agreement
to the contrary, the General Partner shall not have the power or authority to,
and shall not sell, transfer or assign (other than collateral assignments and
transfers) all or substantially all of the assets of the Partnership unless
approved by a Required Interest.
6
4.4 Other
Operations. The General Partner shall devote only such part of
its time to the Partnership as is reasonably required to carry on the
Partnership’s business, and the General Partner and its Affiliates shall at all
times be free to engage in all aspects of businesses similar to that of the
Partnership for their own accounts and for the accounts of
others. Without limiting the generality of the foregoing, the General
Partner and its Affiliates shall have the right to organize and operate other
partnerships, joint ventures and other ventures similar to the
Partnership. Neither the Partnership nor any of the Partners shall
have any rights by virtue of this Agreement in and to such independent business
ventures or to the income or profits derived therefrom.
4.5 Liabilities;
Indemnification.
(a) THE
GENERAL PARTNER AND ITS AFFILIATES SHALL NOT BE LIABLE TO THE PARTNERSHIP OR THE
PARTNERS FOR ANY LOSS OR DAMAGE INCURRED BY THE PARTNERSHIP OR ANY PARTNER BY
REASON OF ANY ACT OR OMISSION (WHETHER NEGLIGENT OR NOT) PERFORMED OR OMITTED BY
THE GENERAL PARTNER OR ITS AFFILIATES IN GOOD FAITH AND IN A MANNER REASONABLY
BELIEVED BY THE GENERAL PARTNER TO BE WITHIN THE SCOPE OF THE AUTHORITY GRANTED
TO THE GENERAL PARTNER BY THIS AGREEMENT. THE PARTNERSHIP SHALL
INDEMNIFY AND SAVE HARMLESS THE GENERAL PARTNER AND ITS AFFILIATES TO THE
FULLEST EXTENT NOW OR HEREAFTER PERMITTED BY THE ACT.
(b) Legal
expenses and other costs incurred by the General Partner and its Affiliates
shall be reimbursed on a monthly basis by the Partnership in advance of the
final disposition of claims for which the General Partner or its Affiliates may
be entitled to be indemnified or held harmless, provided that each person to
whom reimbursement is to be made undertakes to repay funds so advanced if it is
later determined by final, non-appealable judgment of a court of competent
jurisdiction that such person is not entitled to be indemnified or held harmless
by the Partnership. The right of the General Partner and its
Affiliates to be indemnified and held harmless shall continue after the General
Partner ceases to be a Partner. All rights of the General Partner and
its Affiliates under this Section 4.5 shall inure to their respective successors
and assigns.
4.6 Title to Partnership
Properties. Title to all Partnership property shall be taken,
held and recorded in the name of the Partnership.
7
4.7 Transfer of Partnership Interest of
General Partner.
(a) The
General Partner may not assign its right or delegate its responsibility to
manage the affairs of the Partnership except as expressly permitted by this
Agreement. The General Partner may transfer its share of the profits
and distributions from the Partnership without receiving the consent or approval
of any Partner.
(b) The
General Partner may assign all or any portion of its Partnership Interest in the
Partnership to any General Partner admitted to the Partnership pursuant to
Article 6.
(c) Notwithstanding
the foregoing, nothing in this Agreement shall be deemed to prevent (and all
Limited Partners hereby expressly consent to) the transfer by the General
Partner of all of its rights and Partnership Interest in the Partnership, and
the delegation of all its obligations to the Partnership and the Partners to one
or more persons that have, as the result of a merger, consolidation, asset
purchase, corporate reorganization, or other similar transaction, acquired all
or substantially all of the assets of the General Partner, and have assumed the
obligations of the General Partner hereunder.
4.8 Compensation. The
General Partner shall be reimbursed by the Partnership for all expenses incurred
for the direct benefit of the Partnership.
ARTICLE
5
RIGHTS
AND OBLIGATIONS OF LIMITED PARTNERS
5.1 Limitation of
Liability. No Limited Partner shall be liable to the
Partnership for the debts, liabilities, contracts, or any other obligations of
the Partnership, except to the extent of his Partnership Interest in the
Partnership, and as provided in the Partnership’s Certificate of Limited
Partnership or herein.
5.2 Management of
Business. No Limited Partner as such shall take part in the
operation, management, or control of the Partnership business, transact any
business in the Partnership’s name, or have the power to sign documents for or
otherwise bind the Partnership.
5.3 Outside
Activities. A Limited Partner shall be entitled to have
business interests and engage in business activities similar to the
Partnership. Neither the Partnership nor any of the Partners shall
have any rights by virtue of this Agreement in and to such independent business
ventures or to the income or profits derived therefrom.
5.4 Withdrawal; Transfer of Limited
Partner’s Partnership Interest. No Limited Partner may
withdraw or transfer its Partnership Interest without the prior written consent
of the General Partner and a Required Interest of the Partners.
8
ARTICLE
6
REMOVAL
OR WITHDRAWAL OF THE GENERAL PARTNER;
ADMISSION
OF ADDITIONAL GENERAL PARTNERS
6.1 Removal of the Central
Partner. The Limited Partners may vote to remove the General
Partner upon the written consent or affirmative vote of a Required
Interest. The removal of the General Partner shall be effective at
such time as (a) the removed General Partner’s Partnership Interest is
redeemed by a distribution of cash equal to the amount the General Partner would
receive in a liquidation and (b) an amendment of the Partnership’s
Certificate of Limited Partnership is filed to reflect the removal of the
General Partner and the admission to the Partnership of a successor General
Partner.
6.2 Withdrawal. The
General Partner shall not withdraw from the Partnership unless such withdrawal
is approved by a Required Interest.
6.3 Admission of Additional General
Partner. The General Partner may cause the Partnership to
admit as an additional General Partner any person controlling, controlled by or
under common control with the General Partner. The Limited Partners
hereby consent in advance to such an admission of an additional General Partner
pursuant to this Section 6.3; provided, however, that such admission
shall not in any manner reduce the interest of the Limited Partners in the
Partnership. Unless otherwise agreed by the General Partner and the
person to be admitted as an additional General Partner, the additional General
Partner so admitted shall have the same rights and responsibilities as the
General Partner under this Agreement.
6.4 Agreement of Successor General
Partner. A successor General Partner shall, upon consent to
his admission by a Required Interest of the Partners, be admitted as a General
Partner of the Partnership upon his agreeing to be bound by the provisions of
this Agreement to the same extent and on the same terms and conditions as the
prior General Partner. Any such successor General Partner shall, as a
condition of receiving any interest in the Partnership, also agree to be bound
by any contracts, leases, instruments or other documents theretofore executed
and delivered on behalf of the Partnership to the same extent and on the same
terms and conditions as the prior General Partner.
ARTICLE
7
FISCAL
YEAR; BOOKS OF ACCOUNT;
BANK
ACCOUNTS; AND REPORTS
7.1 Books and
Records.
(a) The
General Partner, at the expense of the Partnership, shall maintain for the
Partnership adequate books and records of account which shall be maintained,
except as otherwise required by law, on the accrual basis applying normal
accounting principles as the General Partner may select. The
Partnership shall adopt a 52-53 week year ending on the Friday closest to
March 31 as its fiscal year.
9
(b) The
Limited Partners and their agents may examine, audit and obtain copies of the
books, records and accounts of the Partnership, including federal, state, and
local income tax returns for each year as and when they become available,
inspect its properties, or otherwise make reasonable inquiry as to Partnership
affairs. Any such inspections shall be conducted during the normal
business hours of the General Partner.
7.2 Bank Accounts. All
funds of the Partnership shall be deposited in its name in such bank account or
accounts as may be designated by the General Partner. The General
Partner and any persons authorized in writing by it to do so shall be authorized
to draw checks on the bank accounts of the Partnership. Each bank in
which a Partnership account is maintained shall be relieved of any
responsibility to inquire into the authority of the General Partner to deal with
such funds.
7.3 Tax Elections. The
Partnership shall be a disregarded entity for federal income tax purposes, and
all tax elections shall be made by the General Partner or its sole
member.
ARTICLE
8
DISSOLUTION,
WINDING UP AND TERMINATION; CONTINUATION
8.1 Events of
Dissolution.
(a) The
Partnership shall be dissolved and its affairs wound up upon the first to occur
of the following:
(i) written
consent of all Partners to dissolution;
(ii) withdrawal
of all General Partners; or
(iii) entry of
a decree of judicial dissolution under the Act.
(b) Neither
the death, dissolution, mental incompetency, nor bankruptcy of any Limited
Partner nor the admission or substitution of a person as a Limited Partner in
accordance with the terms hereof shall dissolve, or be deemed to dissolve, the
Partnership or cause any interruption in or affect the continued existence of
the Partnership and its business.
8.2 Continuation of
Business. Notwithstanding the provisions of Section
8.l(a)(ii), the Partnership shall not be dissolved and shall not be required to
be wound up if within ninety (90) days after the occurrence of an event
triggering
Section 8.1(a)(ii),
all remaining Partners agree in writing to continue the business of the
Partnership. If all General Partners withdraw from the Partnership,
then the remaining Limited Partners shall appoint one or more new General
Partners, effective as of the date of the last withdrawal of a General
Partner. Notwithstanding anything to the contrary herein, after the
withdrawal of a General Partner, if there remains at least one General Partner,
the Partnership shall not be dissolved.
10
8.3 Liquidation. Upon
dissolution of the Partnership, the General Partner (or, if there shall not be
any remaining General Partners, a special liquidator (herein called the “Liquidator”)
appointed by the Limited Partners) shall proceed with the winding up of the
Partnership and shall distribute the assets of the Partnership in the following
order of priority:
(a) To
creditors, including Partners who are creditors, to the extent permitted by law,
in satisfaction of liabilities of the Partnership (whether by payment or the
making of reasonable provision for payment thereof) other than liabilities for
which reasonable provision for payment has been made and other than liabilities
to Partners for distributions;
(b) To the
selling up of any reserve which the General Partner (or the Liquidator, where
applicable) shall reasonably deem advisable to provide for any contingent or
unforeseen liabilities or obligations of the Partnership;
(c) To the
Partners and former Partners in satisfaction of liabilities for distributions;
and
(d) To the
Partners in accordance with their Partnership Interests.
At the
expiration of such period of time as the General Partner (or, where applicable,
the Liquidator) shall deem advisable, the remaining balance of any reserve
established in accordance with clause (b) shall be distributed in the manner set
forth in clause (d).
8.4 Distributions in
Kind. In the event the General Partner (or, where applicable,
the Liquidator) determines that it is necessary or desirable upon dissolution to
make a distribution of any property of the Partnership in kind, such property
shall be transferred and conveyed on the basis of the fair market value thereof
to the Partners or their assignees, so as to vest in each of them an undivided
interest, as tenants-in-common, in the whole of such property equal to their
relative Partnership Interests. Any Partnership property distributed
in kind shall be subject to such liens, encumbrances and restrictions or affect
such Partnership properties on the date of distribution.
ARTICLE
9
DEFINITIONS
9.1 Defined Terms. As
used in this Agreement, the following terms shall have the meanings set forth
below:
11
(a) “Act” shall mean the Texas Revised
Limited Partnership Act, as from time to time amended, or any successor statute
thereto.
(b) “Affiliate”
means (1) any person directly or indirectly owning, controlling or holding
the power to vote 50% or more of the outstanding voting securities of the
General Partner; (2) any person 50% or more of whose outstanding voting
securities are directly or indirectly owned, controlled or held with power to
vote by the General Partner; (3) any person directly or indirectly
controlling, controlled by or under common control with the General Partner;
(4) any officer, director, or partner (other than a limited partner in a
partnership managed by the General Partner) of the General Partner; and (5) any
partnership or joint venture in which the General Partner is a partner or joint
venturer.
(c) “Agreement” shall mean this Agreement of
Limited Partnership as originally executed and as amended, modified,
supplemented or restated from time to time.
(d) “General
Partner” means
Alenco Extrusion Management, L.L.C. The term “General Partner” also
includes any other person who is duly admitted to the Partnership as an
additional or successor general partner.
(e) “Limited
Partner” means
Alenco Interests, L.L.C. The term “Limited Partner” also includes any
other person who is admitted to the Partnership as a limited partner pursuant to
the terms of this Agreement.
(f) “Liquidator” shall have the meaning set
forth in Section 8.3.
(g) “Partners” means both the General
Partner and the Limited Partners who are admitted as partners in the
Partnership, unless otherwise indicated.
(h) “Partnership” means New Alenco Extrusion,
Ltd., a Texas limited partnership, as the Partnership may be constituted from
time to time.
(i) “Partnership
Interests” means
the entire ownership interest and rights of a Partner in the Partnership at any
particular time as a General Partner or a Limited Partner, including, but not
limited to, the right of such Partner to any and all rights and benefits to
which a Partner is entitled pursuant to the terms of this
Agreement.
(j) “Required
Interest” means
one hundred percent (100.00%) of the relevant Partnership
Interests.
9.2 Section Headings,
Gender. The headings in this Agreement are inserted for
convenience of reference only and shall not affect interpretation of this
Agreement. Whenever from the context it appears appropriate, each
term stated in either the singular or the plural shall include the singular and
the plural, and pronouns stated in the masculine or the neuter gender shall
include the masculine, the feminine and the neuter. The terms
“hereof” “herein” or “hereunder” shall refer to this Agreement as a whole and
not to any particular Article or Section.
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ARTICLE
10
MISCELLANEOUS
PROVISIONS
10.1 Notices. Any
notices, requests, demands or other communications herein required or permitted
to be given shall be in writing and may be personally served or sent by telex or
mail and shall be deemed to have been given as follows: if personally served,
when served; if by telex, on the second day after transmission thereof on a
telex machine to the proper address and number with confirmed answerback; or if
mailed, on the third day after deposit in first class mail with postage pre-paid
and properly addressed. For purposes of this Section 10.1, the
address of each Limited Partner shall be the address provided the General
Partner in writing of a change of address, and the address of the General
Partner shall be the same as the principal place of business of the
Partnership.
10.2 Execution and
Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereunder had signed the
same document. All counterparts shall be construed together and shall
constitute one agreement.
10.3 Waiver of
Partition. Each Partner hereby irrevocably waives during the
term of the Partnership any right that it or he may have to maintain any action
for partition with respect to any Partnership property.
10.4 Governing Law, Successors,
Severability. This Partnership Agreement and the relative
rights of the parties to this Agreement shall (i) be governed by the laws of the
State of Texas and (ii) subject to the restrictions on transferability set forth
herein, bind and inure to the benefit of the heirs, executors, legal
representatives, successors and assigns of the parties hereto. If any
provision of this Agreement shall be held to be invalid, the remainder of this
Agreement shall not be affected thereby.
10.5 Integrated
Agreement. This Agreement executed by the Partners constitutes
the entire agreement among the parties. This Agreement supersedes any
prior agreement or understandings among them, oral or written, all of which are
hereby canceled. This Agreement may not be modified or amended other
than pursuant to Section 1.8.
10.6 No Waiver. The
failure of any Partner to seek redress for violation, or to insist on strict
performance, of any covenant or condition of this Agreement shall not prevent a
subsequent act which would have constituted a violation from having the effect
of an original violation.
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10.7 Presumptions. Any
act or omission performed or omitted by the General Partner or an Affiliate of
the General Partner on advice of legal counsel or an independent consultant who
has been employed or retained by the Partnership shall be presumed to have been
performed or omitted in good faith. The termination of any action,
suit or proceeding by judgment, order, or settlement shall not, of itself,
create a presumption that any such party did not act in good faith and in the
best interests of the Partnership.
10.8 Time of
Essence. Time shall be of the essence in the performance of
this Agreement
(SIGNATURE
PAGE FOLLOWS)
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IN
WITNESS WHEREOF, this Agreement is executed effective as of the day of April,
2001.
|
Partner
Name
and Address
|
Partner
Signature
|
Partnership
Percentage
|
|
General
Partner
Alenco
Extrusion
Management,
L.L.C.
|
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Sole
Manager
|
0.10%
|
|
Limited
Partner
Alenco
Interests, L.L.C.
|
By: /s/ ▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, Sole
Manager
|
99.90%
|
|
Total
|
100.00%
|
15