LIMITED LIABILITY COMPANY AGREEMENT of ALENCO EXTRUSION GA, L.L.C. A Delaware Limited Liability Company
EXHIBIT 3.46
of
ALENCO
EXTRUSION GA, L.L.C.
A
Delaware Limited Liability Company
New
Alenco Extrusion, Ltd., a Texas limited partnership (the “Member”), hereby forms
a limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act, 6 Del. C. § 18-101, et seq.. (the “Act”),
and hereby declares the following to be the Limited Liability Company Agreement
of such limited liability company:
1. Name. The name of the limited
liability company formed hereby (the “LLC”) is Alenco Extrusion GA,
L.L.C.
2. Purpose and Powers. The
purpose of the LLC is to engage in any activity for which limited liability
companies may be organized in the State of Delaware. The LLC shall possess and
may exercise all of the powers and privileges granted by the Act or by any other
law or by this Agreement, together with any powers incidental thereto, so far as
such powers and privileges are necessary or convenient to the conduct, promotion
or attainment of the business purposes or activities of the LLC.
3. Registered Office. The
registered office of the LLC in the State of Delaware is located at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
4. Registered Agent. The name and
address of the registered agent of the LLC for service of process on the LLC in
the State of Delaware is The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
5. Admission of Member.
Simultaneously with the execution and delivery of this Agreement and the filing
of the Certificate of Formation with the Office of the Secretary of State of the
State of Delaware, New Alenco Extrusion, Ltd. is admitted as the sole Member of
the LLC in respect of the Interest (as hereinafter defined).
6. Interest. The LLC shall be
authorized to issue a single class of Limited Liability Company Interest (as
defined in the Act) (the “Interest”) including any and all benefits to which the
holder of such Interest may be entitled in this Agreement, together with all
obligations of such person to comply with the terms and provisions of this
Agreement.
7. Capital Subscriptions.
Simultaneously with the execution hereof, the Member is contributing $10.00 to
the LLC in exchange for its Interest. The Member may contribute cash or other
property to the LLC as it shall decide, from time to time.
8. Tax Characterization and
Returns. If, at any time, two or more persons or entities hold equity
interests in the LLC for federal income tax purposes (i) it is the intention of
the LLC to be treated as a “partnership” for federal and all relevant state tax
purposes and (ii) the LLC will be treated as a “partnership” for federal and all
relevant state tax purposes and shall make all available elections to be so
treated. Until such time, however, it is the intention of the Member that the
LLC be disregarded for federal and all relevant state tax purposes and that the
activities of the LLC be deemed to be activities of the Member for such
purposes. All provisions of the LLC’s certificate of formation and this
Agreement are to be construed so as to preserve that tax status under those
circumstances.
9. Management.
a. Board of Managers. The
management of the LLC shall be vested in a Board of Managers (the “Board of
Managers”) elected by the Member. The total number of members on the Board of
Managers (the “Managers”) shall be one (1) unless otherwise fixed at a different
number by an amendment hereto or a resolution signed by the Member. The Member
hereby elects ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as the initial Manager of the LLC to serve until
his successors are elected and qualified. A Manager shall remain in office until
removed by a written instrument signed by the Member or until such Manager
resigns in a written instrument delivered to the Member or such Manager dies or
is unable to serve. In the event of any such vacancy, the Member may fill the
vacancy. Each Manager shall have one (1) vote. Except as otherwise provided in
this Agreement, the Board of Managers shall act by the affirmative vote of a
majority of the total number of Managers. Each Manager shall perform his or her
duties as such in good faith, in a manner he reasonably believes to be in the
best interests of the LLC, and with such care as an ordinarily prudent person in
a like position would use under similar circumstances. A person who so performs
his duties shall not have any liability by reason of serving or having served as
a Manager. A Manager shall not be liable under a judgment, decree or
order of court, or in any other manner, for a debt, obligation or liability of
the LLC.
b. Meetings and Powers of Board of
Managers. The Board of Managers shall establish meeting times, dates and
places and requisite notice requirements and adopt rules or procedures
consistent with the terms of this Agreement. Any action required to be taken at
a meeting of the Board of Managers, or any action that may be taken at a meeting
of the Board of Managers, may be taken at a meeting held by means of conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in such a
meeting shall constitute presence in person at such meeting. Notwithstanding
anything to the contrary in this Section 9, the Board of Managers may take
without a meeting any action that may be taken by the Board of Managers under
this Agreement if such action is approved by the unanimous written consent of
the Managers.
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Except as
otherwise provided in this Agreement, all powers to control and manage the
business and affairs of the LLC shall be exclusively vested in the Board of
Managers, and the Board of Managers may exercise all powers of the LLC and do
all such lawful acts as are not by statute, the Certificate of Formation or this
Agreement directed or required to be exercised or done by the Member and in so
doing shall have the right and authority to take all actions which the Board of
Managers deems necessary, useful or appropriate for the management and conduct
of the business of the LLC; provided, however, that the Member may amend this
Agreement at any time and thereby broaden or limit the Board of Manager’s power
and authority.
c. Officers. The LLC shall have
officers who are appointed by the Board of Managers. The officers of the LLC
shall consist of a President, one or more Vice Presidents and a Secretary. The
initial officers of the LLC shall be:
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President
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Vice
President
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Vice
President
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▇. ▇▇▇▇▇▇
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Secretary
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The
powers and duties of each officer shall be as follows:
The President. The President
shall have, subject to the supervision, direction and control of the Board of
Managers, the general powers and duties of supervision, direction and management
of the affairs and business of the LLC usually vested in the president of a
corporation, including, without limitation, all powers necessary to direct and
control the organizational and reporting relationships within the
LLC.
The Vice Presidents. Each Vice
President shall have such powers and perform such duties as may from time to
time be assigned to him or her by the Board of Managers or the
President.
The Secretary. The Secretary
shall attend meetings of the Board of Managers and meetings of the Member and
record all votes and minutes of all such proceedings in a book kept for such
purpose. He or she shall have all such further powers and duties as
generally arc incident to the position of a secretary of a corporation or as may
from time to time be assigned to him or her by the Board of Managers or the
President.
Each of
the officers of the LLC shall be an “authorized person” within the meaning of
the Act for purposes of executing the LLC’s Certificate of
Formation.
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d. Indemnification of the Managers and
Officers. Unless otherwise provided in this Section 9, the LLC shall
indemnify, save harmless, and pay all judgments and claims against any Manager
or Officer relating to any liability or damage incurred by reason of any act
performed or omitted to be performed by any Manager or Officer in connection
with the business of the LLC, including reasonable attorneys’ fees incurred by
the Manager or Officer in connection with the defense of any action based on any
such act or omission, which attorneys’ fees may be paid as incurred. Unless
otherwise provided in this Section 9, in the event of any action by the Member
against any Manager or Officer, including a derivative suit, the LLC shall
indemnify, save harmless, and pay all expenses of such Manager or Officer,
including reasonable attorneys’ fees incurred in the defense of such action.
Notwithstanding the provisions of this Section 9, this Section shall be enforced
only to the maximum extent permitted by law, and no Manager or Officer shall be
indemnified from any liability for the fraud, intentional misconduct, gross
negligence or a knowing violation of the law which was material to the cause of
action.
e. Rights and Powers of the
Member. The Member shall not have any right or power to take part in the
management or control of the LLC or its business and affairs or to act for or
bind the LLC in any way. Notwithstanding the foregoing, the Member has all the
rights and powers specifically set forth in this Agreement and, to the extent
not inconsistent with this Agreement, in the Act. The Member has no
voting rights except with respect to those matters specifically set forth in
this Agreement and, to the extent not inconsistent herewith, as required in the
Act. Notwithstanding any other provision of this Agreement, no action may be
taken by the LLC (whether by the Board of Managers, or otherwise) in connection
with any of the following matters without the written consent of the
Member.
i. the
dissolution or liquidation, in whole or in part, of the LLC, or the institution
of proceedings to have the LLC adjudicated bankrupt or insolvent;
ii. the
filing of a petition seeking or consenting to reorganization or relief under any
applicable federal or state bankruptcy law;
iii. consenting
to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the LLC or a substantial part of its
property;
iv. the
merger of the LLC with any other entity;
v. the sale
of all or substantially all of the LLC’s assets; or
vi. the
amendment of this Agreement.
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10. Distributions. The Board of
Managers may cause the LLC to distribute any cash held by it which is neither
reasonably necessary for the operation of the LLC nor in violation of Sections
18-607 or 18-804 of the Act to the Member at any time.
11. Assignments. A Member may
assign all or any part of its Interest (an assignee of such Interest is
hereinafter referred to as a “Permitted Transferee”). A Permitted Transferee
shall become a substituted Member automatically upon an assignment.
12. Dissolution. The LLC shall
dissolve, and its affairs shall be wound up, upon the earlier to occur of (a)
the decision of the Member, or (b) an event of dissolution of the LLC under the
Act; provided, however, that ninety (90) days following any event terminating
the continued membership of the Member, if the Personal Representative (as
defined in the Act) of the Member agrees in writing to continue the LLC and to
admit itself or some other Person as a member of the LLC effective as of the
date of the occurrence of the event that terminated the continued membership of
the Member, then the LLC shall not be dissolved and its affairs shall not be
wound up.
13. Distributions Upon
Dissolution. Upon the occurrence of an event set forth in Section 12
hereof, the Member shall be entitled to receive, after paying or making
reasonable provision for all of the LLC’s creditors to the extent required by
Section 18-804 of the Act, the remaining funds of the LLC.
14. Limited Liability. No Member
or Manager shall have any liability for the obligations of the LLC except to the
extent required by the Act.
15. Amendment. This Agreement may
be amended only in a writing signed by the Member.
16. Governing Law. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE,
EXCLUDING ANY CONFLICTS OF LAWS RULE OR. PRINCIPLE THAT MIGHT REFER THE
GOVERNANCE OR CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER
JURISDICTION.
17. Severability. Except as
otherwise provided in the succeeding sentence, every term and provision of this
Agreement is intended to be severable, and if any term or provision of this
Agreement is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the legality or validity of the remainder of this
Agreement. The preceding sentence shall be of no force or effect if the
consequence of enforcing the remainder of this Agreement without such illegal or
invalid term or provision would be to cause any party to lose the benefit of its
economic bargain.
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18. Consent to Jurisdiction
Provision. The Member hereby (i) irrevocably submits to the nonexclusive
jurisdiction of any Delaware State court or Federal court sitting in Wilmington,
Delaware, in any action arising out of this Agreement, and (ii) consents to
the service of process by mail. Nothing herein shall affect the right of any
party to serve legal process in any manner permitted by law or affect its right
to bring any action in any other court.
IN
WITNESS WHEREOF, the undersigned has caused this Agreement of Limited Liability
Company to be executed as of the 10 day of April
, 2001.
ALENCO
EXTRUSION GA, L.L.C.
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By
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New
Alenco Extrusion, Ltd.
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Its
Sole Member
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By
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Alenco
Extrusion Management, L.L.C.
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Its
General Partner
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By
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/s/
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▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇, Manager
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Consented
and Agreed:
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/s/
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▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇, Manager
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