REDEMPTION AGREEMENT
THIS REDEMPTION AGREEMENT (the "Agreement"), made and entered into as of
this 9th day of December, 1995 is by and among Norco Windows, Inc., a Wisconsin
corporation ("Norco"), Sealrite Windows, Inc., a Nebraska corporation
("SealRite"), Xxxxxx Window Corp., a Delaware corporation ("Xxxxxx"), and
Outlook Window Partnership, L.P., a Delaware limited partnership (the
"Partnership").
RECITALS
A. Pursuant to that certain Partnership Formation and Contribution
Agreement (the "Partnership Formation Agreement") among TJ International, Inc.
("TJI"), SealRite and Xxxxxx dated October 11, 1994, but effective October 3,
1994 (the "Original Agreement"), the parties thereto formed N-S&O Partnership, a
Delaware general partnership, on the terms and conditions set forth therein.
B. Pursuant to that certain Amended and Restated Partnership Agreement
dated November 14, 1994 (the "Restated Partnership Agreement") by and among
Norco, Sealrite and Xxxxxx, as general partners (the "General Partners"), and
Xxxxxxxx X. Xxx as initial limited partner (the "Initial Limited Partner"), the
parties thereto (1) caused the N-S&O Partnership to be converted from a general
partnership to a limited partnership, (2) changed its name to Outlook Window
Partnership, L.P. and (3) amended and restated the Original Agreement.
C. Pursuant to that certain Assignment, Consent and Second Amendment to
the Partnership Agreement dated as of August 15, 1995 (the "Assignment, Consent
and Second Amendment"), the Initial Limited Partner withdrew from the
Partnership and transferred his limited partnership interest in the Partnership
to Xxxx X. Xxxxx (the "Substitute Limited Partner," and together with the
General Partners, the "Partners"), who was admitted to the Partnership as a
limited partner.
D. Pursuant to the Restated Partnership Agreement, as amended by the First
Amendment thereto dated as of December 28, 1994 and the Assignment, Consent and
Second Amendment (as amended, the "Partnership Agreement"), Norco agreed,
subject to certain conditions, to use its best efforts to make available or
cause to be made available borrowings from TJI's revolving credit facility in
certain circumstances.
E. The amount of Partnership Debt owed by the Partnership to TJI as of
December 7, 1995 was approximately $22,200,000.
F. The operating performance of the Partnership since its formation has
been below expectations and has resulted in significant operating losses.
G. Norco desires to transfer all of its right, title and interest in and
to its interest in the Partnership to the Partnership on the terms set forth
herein, and the Partnership desires to purchase and redeem from Norco all of
Norco's right, title and interest in and to its interest in the Partnership on
the terms and conditions set forth herein.
H. Certain of the capitalized terms used herein are defined in Section 9
hereof.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals (which are
hereby incorporated into and shall be deemed a part of this Agreement), the
covenants, representations and warranties set forth herein, and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. REDEMPTION OF PARTNERSHIP INTEREST.
(a) In reliance upon the representations and warranties and
agreements set forth in this Agreement:
(i) Norco hereby assigns, transfers and delivers to the
Partnership, effective as of the Effective Date, all of Norco's right, title and
interest in all 64,000 units of interest in the Partnership owned by Norco and
all other equity interests, if any, in the Partnership owned by Norco
(collectively, the "Norco Partnership Interest"), free and clear of all Liens;
(ii) Norco hereby assumes, effective as of the Effective Date,
all except for $2 million of the Partnership Debt owed by the Partnership to TJI
as of the date hereof (such amount of Partnership Debt less such $2 million is
referred to herein as the "Assumed Debt") and agrees to perform and discharge
all of the duties and obligations of the Partnership with respect to the Assumed
Debt including, without limitation, the obligation to pay when due all amounts
owed with respect to the Assumed Debt; and
(iii) if the net working capital balance attributable to S&O
Business as of the close of business on December 1, 1995, determined in
accordance with this Section 1(a) and Section 6(f) hereof (the "S&O 12/1/95
Balance") is less than $8,911,070 (the "S&O 10/1/95 Balance"), Norco agrees to
deliver by wire transfer to the Partnership within 30 days after the Effective
Date the amount by which the S&O 10/1/95 Balance exceeds the S&O 12/1/95
Balance. In computing the S&O 10/1/95 Balance and the S&O 12/1/95 Balance, (A)
all inter-company S&O accruals to the Partnership headquarters shall be
eliminated, (B) the net working capital balances as of October 1, 1995 and
December 1, 1995 shall be computed on a consistent basis in accordance with the
illustration of such computation attached hereto as SCHEDULE A, (C) all deposits
and deposits in transit of checks and cash made by S&O on or prior to December
1, 1995 and all S&O checks issued on or prior to December 1, 1995 shall be for
the benefit or detriment of Norco; (D) all deposits of checks and cash made by
S&O on or after December 2, 1995 and all S&O checks issued on or after December
2, 1995 shall be for the benefit or detriment of S&O and (E) all Partnership
checks outstanding as of the close of business on December 1, 1995 shall be the
responsibility of Norco. In the event that either Norco or the Partnership
disputes the S&O 10/1/Balance and the S&O 12/1/95 Balance within 30 days after
the Effective Date, Xxxxx Xxxxxxxx and Xxx Xxxxxx or other appropriate
representatives of Norco and the Partnership shall promptly meet and, acting in
good faith, shall use their reasonable best efforts to resolve such dispute. In
the event the resolution of such dispute results in any adjustment to the S&O
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10/1/Balance and the S&O 12/1/95 Balance set forth herein, Norco or the
Partnership (as applicable) shall promptly make the appropriate adjusting
payment to the other party.
(b) In reliance upon the representations and warranties and
agreements set forth in this Agreement, the Partnership hereby delivers to Norco
in payment for the Norco Partnership Interest the following consideration:
(i) the Partnership hereby assigns, transfers and delivers to
Norco, effective as of the Effective Date, all right, title and interest of the
Partnership in and to the Norco Assets, on an as-is and where-is basis and
(subject to Section 6(a) hereof) subject to any and all Liens applicable
thereto;
(ii) if the S&O 12/1/95 Balance exceeds the S&O 10/1/95 Balance,
the Partnership agrees to deliver by wire transfer to Norco within 30 days after
the Effective Date the amount by which the S&O 12/1/95 Balance exceeds the S&O
10/1/95 Balance;
(iii) the Partnership hereby agrees that all cash collected with
respect to all trade and other account Receivables arising out of or resulting
from the Norco Business before the Effective Date (the "Norco Trade
Receivables") (which the parties hereto acknowledge are not Norco Assets) will
promptly (and in no event more than two business days after receipt) be paid and
delivered to Norco; and
(iv) the right pursuant to Section 4(a) hereof to use the Vinyl
Assets and operate the Vinyl Plant without the payment of compensation to the
Partnership during the Post-Closing Period (as defined in Section 4(a) below).
(c) LIABILITIES OF NORCO; RELEASE OF PARTNERSHIP.
(i) Except as otherwise expressly set forth in this Agreement,
effective as of the Effective Date, Norco hereby assumes sole responsibility for
(A) all liabilities and obligations (whether now existing or arising after the
Effective Date, secured or unsecured, known or unknown, or absolute, accrued or
contingent) arising out of or resulting from the Norco Business or the Norco
Assets (collectively, the "Norco Liabilities"), and (B) all liabilities and
obligations (whether now existing or arising before the Vinyl Plant Closing
Date, secured or unsecured, known or unknown, or absolute, accrued or
contingent) arising out of or resulting from the Vinyl Assets or the business
conducted using the Vinyl Assets (including product liability claims relating
thereto) prior to the Vinyl Plant Closing Date (the "Norco Vinyl Liabilities"),
provided that Norco assumes no responsibilities for any liabilities and
obligations (whether secured or unsecured, known or unknown, or absolute,
accrued or contingent) arising out of or resulting from the Vinyl Assets or the
business conducted using the Vinyl Assets (including product liability claims
relating thereto) on or after the Vinyl Plant Closing Date.
(ii) Norco, for itself and its Affiliates, agents,
representatives and assigns, hereby remise, release and forever discharge the
Partnership and its Affiliates, partners, agents,
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representatives and assigns from any and all Claims arising from and relating to
the Norco Liabilities or the Norco Vinyl Liabilities; and
(d) LIABILITIES OF THE PARTNERSHIP; RELEASE OF NORCO.
(i) Except as otherwise expressly set forth in this Agreement,
the Partnership remains liable for (A) all liabilities and obligations (whether
now existing or arising after the Effective Date, secured or unsecured, known or
unknown, or absolute, accrued or contingent) arising out of or resulting from
(1) the Xxxxxx Business, (2) the SealRite Business, (3) the Xxxxxx Assets and
(4) the SealRite Assets (collectively, the "S&O Liabilities"), and (B) all
liabilities and obligations (whether secured or unsecured, known or unknown, or
absolute, accrued or contingent) arising out of or resulting from the Vinyl
Assets or the business conducted by the Partnership using the Vinyl Assets
(including product liability claims relating thereto) on or after the Vinyl
Plant Closing Date (the "Partnership Vinyl Liabilities"), provided that the
Partnership retains no responsibilities for any liabilities and obligations
(whether secured or unsecured, known or unknown, or absolute, accrued or
contingent) arising out of or resulting from the Vinyl Assets or the business
conducted using the Vinyl Assets (including product liability claims relating
thereto) before the Vinyl Plant Closing Date.
(ii) The Partnership, for itself and its Affiliates, partners,
agents, representatives and assigns, hereby remise, release and forever
discharge Norco and its Affiliates, agents, representatives and assigns from any
and all Claims arising from and relating to the S&O Liabilities and the
Partnership Vinyl Liabilities.
(e) DELIVERY OF NOTE BY THE PARTNERSHIP. The Partnership hereby
ratifies and confirms that, after giving effect to the assumption by Norco of
the Assumed Debt, the Partnership owes TJI $2 million as of the date hereof
(such amount representing the difference between the Partnership Debt and the
Assumed Debt), and to evidence such debt the Partnership is issuing and
delivering concurrently with the execution and delivery of this Agreement an
unsecured subordinated promissory note of the Partnership in substantially the
form of EXHIBIT A to this Agreement (the "Note") in the aggregate principal
amount of $2 million.
(f) TJI RELEASE. Norco is delivering concurrently with the execution
and delivery of this Agreement a release duly executed by TJI in substantially
the form of EXHIBIT B to this Agreement (the "TJI Release") which releases the
Partnership and its agents, representatives and assigns from any and all claims,
demands, actions, liabilities and other claims for relief and remuneration
whatsoever arising from and relating to the Assumed Debt.
(g) MUTUAL RELEASE. The parties hereto are delivering concurrently
with the execution and delivery of this Agreement a release in substantially the
form of EXHIBIT C to this Agreement (the "Mutual Release") duly executed by each
of the Persons who is a party to such Mutual Release.
(h) CREDIT AGREEMENT AMENDMENT. Norco will deliver as promptly as is
practicable after the execution and delivery of this Agreement the First
Amendment to Credit Agreement dated effective as of December 9, 1995 by and
among TJI and Wachovia Bank of Georgia, N.A., for itself
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and other banks as therein stated, in substantially the form of EXHIBIT D to
this Agreement (the "Credit Agreement Amendment").
(i) SECURITY AGREEMENT. The Partnership is delivering concurrently
with the execution and delivery of this Agreement a Security Agreement duly
executed by the Partnership and Norco in substantially the form of EXHIBIT E to
this Agreement (the "Security Agreement").
2. EFFECTIVE DATE. The delivery of this Agreement and related instruments
and agreements is taking place at the offices of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx,
0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 on December 9, 1995 and the closing of
the transactions contemplated hereby shall be effective as of 12:01 a.m. Chicago
time on December 9, 1995 (the "Effective Date").
3. CERTAIN INSURANCE, PERSONNEL AND EMPLOYEE BENEFIT MATTERS.
(a) INSURANCE. With respect to each of the insurance policies of the
Partnership listed on SCHEDULE B hereto, the actions specified on such Schedule
B shall be fully implemented, on the terms and conditions specified, as of the
Effective Date.
(b) PERSONNEL.
(i) The parties hereto are delivering concurrently with the
execution and delivery of this Agreement an Employee Leasing Agreement duly
executed by Norco and the Partnership in substantially the form of EXHIBIT F to
this Agreement (the "Employee Leasing Agreement").
(ii) Effective as of January 1, 1996, all Norco Employees shall
cease to be employees of the Partnership and shall be employed by Norco on
substantially the same terms and conditions as such persons were employed by the
Partnership.
(iii) The parties hereto acknowledge and agree that except as
otherwise stated herein or in the Employee Leasing Agreement, Norco shall be
responsible for all payments due in respect of the termination of any Norco
Employee, and the Partnership shall be responsible for all payments due in
respect of the termination of any other employee of the Partnership.
(iv) Norco shall procure and maintain Workers' Compensation
insurance on all Norco Employees during the period beginning on the Effective
Date and ending on January 1, 1996 and that the Partnership will be named as an
additional insured with respect to such policy at all times during such period.
(c) EMPLOYEE BENEFITS. The parties hereto agree that with respect to
each of the employee benefit plans of the Partnership listed on SCHEDULE C, they
will use their reasonable best efforts to fully implement and cause to become
effective on or before January 1, 1996 all of the actions specified (and on
substantially the terms and conditions specified) in such Schedule C to be taken
with respect to such employee benefit plans, except as Norco and the Partnership
may otherwise agree in writing, such agreement not to be unreasonably withheld.
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(d) ALLOCATION OF CERTAIN PARTNERSHIP LIABILITIES.
(i) All unpaid Centralized Function Expenses incurred on or
before December 1, 1995 shall be borne and paid by Norco. All Centralized
Function Expenses incurred on or after December 2, 1995 shall be timely paid by
the Partnership, and within 10 days after receipt by Norco of a written request
for payment accompanied by appropriate documentation of payment by the
Partnership of any such Centralized Function Expense, Norco will pay the
Partnership an amount equal to 64% of the Centralized Function Expenses paid by
the Partnership.
(ii) With respect to all health care coverage expenses relating
to treatment or services rendered prior to January 1, 1996, Norco shall be
responsible for all payments due in respect of any Norco Employee, and the
Partnership shall be responsible for all payments due in respect of any other
employee of the Partnership. Notwithstanding anything herein or the Employee
Leasing Agreement to the contrary, the parties hereto agree that 64% of the
salary of Xxxxx Xxxxxx and other administrative expenses directly related to the
administration of such claims during the period beginning on the Effective Date
and ending January 31, 1996 shall be the responsibility of Norco and 36% of such
expenses shall be the responsibility of the Partnership.
4. POST-CLOSING OPERATION OF THE VINYL PLANT AND REMOVAL OF THE VINYL
ASSETS.
(a) The Partnership hereby agrees that during the period beginning on
the Effective Date and ending at the close of business on the Vinyl Plant
Closing Date (the "Post-Closing Period") Norco shall have the sole right,
without the payment of any additional compensation to the Partnership, to use
the Vinyl Assets and operate (at Norco's cost and expense) the Vinyl Plant as
Norco in its discretion deems appropriate to satisfy purchase orders of
customers of the Norco Business which are outstanding on the Effective Date and
additional purchase orders received from customers of the Norco Business after
the Effective Date. The Partnership recognizes and acknowledges that Norco has
no obligation to replenish or otherwise compensate the Partnership for any of
the inventory portion of the Vinyl Assets which are used by Norco in the
ordinary course of operating the Vinyl Plant during the Post-Closing Period. It
is understood that Norco will use reasonable efforts consistent with past
practices to maintain the condition of the fixed asset portion of the Vinyl
Assets during the Post-Closing Period, but subject to the foregoing and the last
sentence of this Section 4(a), no representation is made or assurance given by
Norco to the Partnership regarding the condition of the Vinyl Assets on the
Vinyl Plant Closing Date. Norco shall not use any of the Vinyl Assets or
operate the Vinyl Plant after the close of business on the Vinyl Plant Closing
Date. The expense of insurance currently maintained on the Vinyl Assets shall
be borne by Norco through the Vinyl Plant Closing Date, and thereafter any such
insurance expense shall be borne by the Partnership. Norco shall bear the risk
of all insurable losses with respect to the Vinyl Assets prior to the Vinyl
Plant Closing Date, and thereafter the risk of all such losses shall be borne by
the Partnership.
(b) Norco shall be responsible for any required severance payments to
employees of the Partnership who work at the Vinyl Plant and whose employment is
terminated as a result of the cessation of operations at the Vinyl Plant.
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(c) Except as set forth in Section 4(d) below, Norco shall pay to the
lessor all payments due with respect to, and observe or perform all other
covenants required to be observed or performed under, that certain SubLease
Agreement dated as of June 18, 1993 by and between Norco and Great Plains/Samson
Bag Corp. (d/b/a/ Stone Container Corporation) and that certain Land Lease dated
as of December 21, 1994 by and between Norco and Duke Realty Limited Partnership
relating to certain parking facilities (collectively, the "Vinyl Plant Lease")
between the Effective Date and the expiration of the Vinyl Plant Lease on
February 28, 1996.
(d) The Vinyl Assets shall be made available to the Partnership
during normal business hours during the period beginning the first day after the
Vinyl Plant Closing Date and ending on one day prior to the expiration of the
Vinyl Plant Lease (the "Removal Period"). The Partnership shall remove all of
the Vinyl Assets owned by the Partnership as of the close of business on the
Vinyl Plant Closing Date from the Vinyl Plant during the Removal Period and
shall pay all costs and expenses associated with such removal, including all
costs and expenses (if any) relating to damage to the property leased pursuant
to the Vinyl Plant Lease caused by the removal of such Vinyl Assets by the
Partnership, it being understood that except for any such removal damages, Norco
shall remain responsible for any obligation under the Vinyl Plant Lease for the
condition of the Vinyl Plant.
5. REPRESENTATIONS AND WARRANTIES OF NORCO. Assuming the representation
and warranty set forth in Section 6(g) is true and correct, Norco represents and
warrants to the Partnership that, as of the date hereof:
(a) TITLE TO NORCO PARTNERSHIP INTEREST. Norco owns beneficially and
of record, and has good and marketable title to, the Norco Partnership Interest
and hereby conveys such Norco Partnership Interest to the Partnership free and
clear of any Liens.
(b) AUTHORITY TO EXECUTE AND PERFORM THE AGREEMENT. Norco has the
requisite corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder. The execution and delivery of this
Agreement and the performance of Norco's obligations hereunder have been
authorized by the board of directors of Norco, in accordance with its articles
of incorporation and by-laws. This Agreement has been duly executed and
delivered by Norco and is the legal and binding obligation of Norco, enforceable
against Norco in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors
rights and remedies generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(c) NO CONFLICTS. (i) No provision of the certificate of
incorporation or by-laws of Norco or any material agreement or instrument to
which Norco is a party or by which it is bound, of any material law, rule or
regulation of any jurisdiction applicable to Norco, or of any material order,
judgment or decree of any court or administrative agency applicable to Norco or
by which it is bound, will be materially breached, violated or defaulted by the
execution and delivery by Norco of this Agreement or the performance or
satisfaction by Norco of any agreement, covenant or condition herein, and (ii)
no provision of the Partnership Agreement or any other material agreement or
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instrument to which the Partnership is a party or by which it is bound (other
than agreements or instruments arising out of and relating solely to the S&O
Business), of any material law, rule or regulation of any jurisdiction
applicable to the Partnership, or of any material order, judgment or decree of
any court or administrative agency applicable to the Partnership or by which it
is bound (other than laws, regulations, orders, judgments and decrees arising
out of or applicable solely to the S&O Business), will be materially breached,
violated or defaulted by the execution and delivery by the Partnership of this
Agreement or the performance or satisfaction by the Partnership of any
agreement, covenant or condition herein.
(d) NO CONSENTS. (i) The execution, delivery and performance by
Norco of this Agreement, and the consummation of the transactions effected
hereby do not require the consent, waiver, authorization or approval of, notice
to or filing with (A) any Governmental Authority or (B) any other Person, and
(ii) the execution, delivery and performance by the Partnership of this
Agreement, and the consummation of the transactions effected hereby do not
require the consent, waiver, authorization or approval of, notice to or filing
with (A) any Governmental Authority having authority over the Norco Business or
(B) any other Person whose consent, waiver, authorization or approval is
necessary because of the Norco Business; except in either case for consents,
waivers, authorizations, approvals, notices or filings which have been duly
obtained or completed as of the date hereof or which will not, individually or
in the aggregate, have a material adverse effect on the ability of Norco to
satisfy its obligations pursuant to this Agreement.
(e) No officer, director, Affiliates, agents or representative of
Norco has taken any action which caused the representations and warranties set
forth in Sections 6(b), 6(d), 6(e) and 6(f) of this Agreement to be inaccurate
as of the Effective Date.
(f) The Board of Directors of TJI has duly adopted a resolution
authorizing the appropriate officers of TJI to determine the fair market value
of the gross assets being distributed to Norco; and, in the judgment of such
officers, the fair market value of the gross Norco Assets being distributed to
Norco (exclusive of cash, cash-equivalents, notes receivable and liabilities
applicable thereto) is less than $15 million in the aggregate as of the
Effective Date.
6. REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. Assuming the
representation and warranty set forth in Section 5(e) is true and correct, the
Partnership, Xxxxxx and SealRite represent and warrant to Norco that, as of the
date hereof:
(a) TITLE TO NORCO ASSETS. No officer, director, Affiliate, agent or
representative of Xxxxxx or SealRite has taken any action which resulted in the
imposition of a Lien on any of the Norco Assets.
(b) AUTHORITY TO EXECUTE AND PERFORM AGREEMENT. The Partnership is
validly existing as a limited partnership in good standing in the State of
Delaware and has all requisite power and authority to carry out the transactions
contemplated hereby. The execution and delivery of this Agreement and the Note
and the performance of the Partnership's obligations hereunder and thereunder
have been duly authorized by the Partnership, and no other proceedings on the
part of the
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Partnership are necessary to authorize such execution, delivery and performance.
This Agreement has been duly executed by the Partnership and is the valid and
legal binding obligation of the Partnership, enforceable against the Partnership
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors rights and
remedies generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law or in
equity).
(c) VALIDITY OF THE NOTE. Upon issuance by the Partnership, the Note
will have been duly executed by the Partnership and will constitute legally
valid and binding obligations of the Partnership, enforceable against the
Partnership in accordance with its terms and the terms of this Agreement,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors rights and remedies generally, and subject, as
to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(d) NO CONFLICTS. No provision of the Partnership Agreement or any
other material agreement or instrument to which the Partnership is a party or by
which it is bound (other than agreements or instruments arising out of and
relating solely to the Norco Business), of any material law, rule or regulation
of any jurisdiction applicable to the Partnership, or of any material order,
judgment or decree of any court or administrative agency applicable to the
Partnership or by which it is bound (other than laws, regulations, orders,
judgments and decrees arising out of or applicable solely to the Norco
Business), will be materially breached, violated or defaulted by the execution
and delivery by the Partnership of this Agreement and the Note or the
performance or satisfaction by the Partnership of any agreement, covenant or
condition herein or therein.
(e) NO CONSENTS. The execution, delivery and performance by the
Partnership of this Agreement, and the consummation of the transactions effected
hereby do not require the consent, waiver, authorization or approval of, notice
to or filing with (i) any Governmental Authority having authority over the S&O
Business or (ii) any other Person whose consent, waiver, authorization or
approval is necessary because of the S&O Business; except in either case for
consents, waivers, authorizations, approvals, notices or filings which have been
duly obtained or completed as of the date hereof or which will not, individually
or in the aggregate, have a material adverse effect on the ability of the
Partnership to satisfy its obligations pursuant to this Agreement.
(f) WORKING CAPITAL PRACTICES. The working capital management
practices and policies of the S&O portion of the Partnership during the period
beginning on October 1, 1995 and ending on the Effective Date have been
consistent in all material respects with the practices and policies of the
Partnership used in the ordinary course of its business prior to such period.
Without limiting the generality of the foregoing, the Partnership has not taken
any action outside the ordinary course of business which would have the effect
of shifting net assets out of or accounts payable in to such period.
(g) No officer, director, Affiliates, agents or representative of
SealRite or Xxxxxx has taken any action which caused the representations and
warranties set forth in Sections 5(c) or 5(d) of this Agreement to be inaccurate
as of the Effective Date.
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7. OTHER AGREEMENTS.
(a) CERTAIN TAX MATTERS. (i) The parties hereto agree that for
income tax purposes, to the extent permitted by applicable law, all Partnership
items of income, gain, loss, deduction, credit and other Partnership items
arising in the period beginning on January 1, 1995 and ending on the Effective
Date (the "1995 Stub Period") that are properly allocable (including pursuant to
an appropriate allocation of overhead and similar expenses) to the business and
assets to be distributed to Norco pursuant to this Agreement shall be allocated
solely to Norco and shall not be allocated to Partners other than Norco, and all
other Partnership items arising in the 1995 Stub Period shall be allocated
solely to Partners other than Norco and shall not be allocated to Norco. The
parties hereto agree that the allocation and characterization of all Partnership
items of income, gain, loss, deduction, credit and other Partnership items shall
be agreed to and approved by each of Norco and the Partnership, such agreement
and approval not to be unreasonably withheld.
(ii) Upon the reasonable request of the Partnership, Norco shall
cooperate with and provide information to the Partnership to enable the
Partnership to adjust the basis of its property under sections 743 and 754 of
the Internal Revenue Code of 1986, as amended.
(b) TERMINATION OF CERTAIN AGREEMENTS. Effective as of the Effective
Date and without any further action by any Person except as otherwise expressly
provided herein, the following agreements are terminated and shall thereafter
have no force or effect:
(i) that certain Partnership Formation and Contribution Agreement
dated October 11, 1994 by and among TJI, SealRite and Xxxxxx and all agreements
and instruments (other than the Partnership Agreement), in each case as amended
to date, delivered pursuant thereto, including (A) that certain Liquidity
Transaction Agreement dated as of October 3, 1994 by and among TJI, the
Partnership and the shareholders of SealRite and Xxxxxx specified therein; and
(B) that certain Partnership Support Services Agreement dated as of October 3,
1994.
(ii) effective upon the execution and delivery of the Credit
Agreement Amendment as contemplated by Section 1(h) hereof, the guaranties of
the Partnership in favor of Wachovia Bank referenced in the Credit Agreement
Amendment.
SealRite, Xxxxxx and the Partnership hereby acknowledge and agree that as of the
Effective Date, Norco is not bound by, and has no obligations to the Partnership
or any other Person under, the Partnership Agreement, including without
limitation the obligations to provide access to financing pursuant to Section
3.7 of the Partnership Agreement, other than the indemnification obligations set
forth in Section 8.2.2 of the Partnership Agreement as in effect on the
Effective Date. Norco hereby acknowledges and agrees that as of the Effective
Date, none of SealRite, Xxxxxx or the Partnership has any obligations to Norco
under the Partnership Agreement, other than the indemnification obligations set
forth in Section 8.2.2 of the Partnership Agreement as in effect on the
Effective Date.
(c) SUBORDINATION OF THE NOTE AND RELATED MATTERS.
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(i) Norco agrees and consents that TJI's rights to payment
pursuant to the Note may be subordinated to the Partnership's obligations to a
bank or other institutional lender pursuant to a loan agreement providing credit
facilities to the Partnership not exceeding in the aggregate $6,000,000 (the
"Bank Debt") pursuant to the terms of the Subordination Agreement by and between
TJI, FirstTier Bank, National Association and the Partnership attached hereto as
EXHIBIT G and pursuant to the terms of any Subordination Agreement relating to
the refinancing of the Bank Debt, provided that the terms of such Subordination
Agreement are satisfactory to TJI, the Partnership and their respective counsel
acting in good faith and exercising reasonable judgment.
(ii) So long as any amount remains outstanding with respect to
the Note, interest on the Note shall at all times accrue and be payable in
accordance with the terms of the Note except at such times that the Partnership
is in default with respect to the Bank Debt. The right to payment pursuant to
the Note shall not be subordinated to any obligations of the Partnership except
for the Bank Debt.
(iii) So long as the Note is outstanding, the Partnership agrees
and covenants that it will not grant a security interest in all or any
substantial portion of its assets other than a purchase money security interest,
in connection with the Bank Debt or pursuant to the Security Agreement.
(d) COLLECTION OF NORCO TRADE RECEIVABLES. In connection with the
collection of the Norco Trade Receivables which Norco is entitled to receive the
proceeds from pursuant to Section 1(b)(iii) of this Agreement, Norco agrees to
make available to the Partnership without receipt of any additional compensation
the services of the Norco Employees who in the ordinary course of the Norco
Business were responsible for the collection of the Norco Trade Receivables
immediately prior to the Effective Date, and Norco and the Partnership hereby
agree that such Persons shall have the sole discretion with respect to the
collection of the Norco Trade Receivables, including without limitation all
decisions regarding the necessity or advisability of making adjustments to
particular accounts and the policies and practices used in such collection
efforts.
(e) CERTAIN ADJUSTMENTS WITH RESPECT TO THE DECEMBER STUB PERIOD.
With respect to all transactions effected by the Partnership during the period
beginning on December 2, 1995 and ending at the close of business on the
Effective Date (the "December Stub Period"), the parties hereto acknowledge and
agree to make all adjustments necessary so that (a) all transactions effected in
connection with the Norco Business shall be solely for the benefit or detriment
of Norco and (b) all transactions effected in connection with the S&O Business
shall be solely for the benefit or detriment of the Partnership. Without
limiting the generality of the foregoing, the parties hereto agree to take all
actions and make all adjustments necessary for (a) all cash transactions
effected in connection with the Norco Business during the December Stub Period
shall be solely for the benefit or detriment of Norco and (b) all cash
transactions effected in connection with the S&O Business during the December
Stub Period shall be solely for the benefit or detriment of the Partnership.
The parties hereto agree that Xxxxx Xxxxxxxx and Xxx Xxxxxx or other appropriate
representatives of Norco and the Partnership shall meet within 30 days of the
Effective Date, and acting in good faith, shall use their reasonable best
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efforts to reach an agreement as to the nature and amount of all such
adjustments. Upon the agreement of such Persons, Norco or the Partnership (as
applicable) shall promptly make the appropriate adjusting payment to the other
party.
(f) As soon as is practicable after the Effective Date, Norco will
cause each Person who is an Affiliate or officer of Norco or TJI and who is an
officer or management board member of the Partnership to deliver, effective as
of the Effective Date, a duly executed letter of resignation effecting his or
her resignation from any and all offices held by such Person with the
Partnership, and the Partnership shall accept all such resignations.
(g) The parties hereto are delivering concurrently with execution and
delivery of this Agreement an Assignment, Consent and Third Amendment to the
Partnership Agreement duly executed by each of the parties thereto
substantially in the form attached hereto as
EXHIBIT H.
8. SURVIVAL AND INDEMNIFICATION.
(a) SURVIVAL AND REMEDIES. All representations, warranties,
covenants and agreements of each of the parties hereto contained in this
Agreement, including all statements contained in any schedule delivered pursuant
hereto, shall be deemed to have been relied upon by Norco or the Partnership, as
the case may be, and shall survive the Effective Date. In the event of a breach
of any of such representations, warranties, covenants and agreements, the party
to whom such representation, warranty, covenant or agreement has been made shall
have all rights and remedies for such breach available to it under the
provisions of this Agreement and to the extent provided by law, regardless of
any disclosure to, or investigation made by or on behalf of such party on or
before the Effective Date. The rights and remedies of any party based upon,
arising out of or otherwise in respect of any inaccuracy in or breach of any
representation, warranty, covenant or agreement contained in this Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which any claim of any such inaccuracy or breach is
based may also be the subject matter of any other representation, warranty,
covenant or agreement contained in this Agreement as to which there is no
inaccuracy or breach.
(b) INDEMNIFICATION OF THE PARTNERSHIP BY NORCO. Subject to Section
8(d) of this Agreement, Norco shall indemnify and hold harmless the Partnership
and its Affiliates, employees, partners, representatives, successors and
permitted assigns harmless from and against any and all Losses incurred by any
of the above-named persons resulting from, in connection with or arising out of:
(i) any inaccuracy or breach referred to in Section 8(a) of this Agreement made
by Norco to the Partnership in this Agreement, (ii) any failure to perform or
breach of any covenant or agreement made by Norco hereunder, (iii) any Norco
Vinyl Liability or (iv) any Norco Liability, whether resulting from, in
connection with or arising out of activities before or after the Effective Date.
(c) INDEMNIFICATION OF NORCO BY THE PARTNERSHIP. Subject to Section
8(d) of this Agreement, the Partnership shall indemnify and hold harmless Norco
and its Affiliates, employees, shareholders, directors, officers,
representatives, successors and permitted assigns harmless from and
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against any and all Losses incurred by any of the above-named persons resulting
from, in connection with or arising out of: (i) any inaccuracy or breach
referred to in Section 8(a) of this Agreement made by the Partnership to Norco
in this Agreement, (ii) any failure to perform or breach of any covenant or
agreement made by the Partnership hereunder, (iii) any Partnership Vinyl
Liability or (iv) any S&O Liability, whether resulting from, in connection with
or arising out of activities before or after the Effective Date.
(d) INDEMNIFICATION LIMITATIONS. Notwithstanding anything herein to
the contrary, neither Norco or the Partnership shall be obligated to indemnify
any Person for pursuant to this Section 8 for a breach of a representation and
warranty hereunder only in the event and to the extent that the Losses entitled
to indemnification for such breach pursuant to this Section 8 against Norco, on
the one hand, or against the Partnership, on the other hand, exceed in the
aggregate $10,000.
(e) PROCEDURE FOR CLAIMS. If, after the Effective Date, any legal
proceeding shall be instituted or any Claim shall be asserted by any Person in
respect of which indemnification may be sought under this Section 8, the party
seeking indemnification ("Claiming Party") shall promptly and (subject to
Section 8(f) below) in no event more than fifteen (15) days after such knowledge
cause written notice thereof to be given to the party against whom
indemnification is sought ("Indemnifying Party"). In the event of such Claim or
legal proceeding, the Indemnifying Party shall have the right, but not the
obligation, to employ at its expense such counsel as is reasonably acceptable to
the Claiming Party to defend any such Claim or legal proceeding asserted against
it, and such Claiming Party shall have the right to participate in the defense
of any such Claim or legal proceeding; and, so long as the Indemnifying Party is
defending such Claim or legal proceeding in good faith, the Claiming Party will
be responsible for any of its own attorney's fees and expenses in connection
with such participation, and the Claiming Party shall not settle such Claim or
legal proceeding without the written consent of the Indemnifying Party, which
consent shall not unreasonably be withheld. If in the course of defending any
Claim or legal proceeding, the Indemnifying Party presents a settlement
("Settlement") to the Claiming Party which the Claiming Party unreasonably
refuses to accept, for whatever reason, the Indemnifying Party shall be relieved
of its obligation to continue defending, at its expense, or paying expenses and
fees associated with the continued defense of the Claim or legal proceeding on
behalf of the Claiming Party. Upon resolution of the Claim or legal proceeding,
the Indemnifying Party shall pay to the Claiming Party the lesser of (i) the
Settlement amount stated above and (ii) the amount for which the Claiming Party
has been determined liable plus legal fees and expenses of the Claiming Party.
Each party shall use reasonable efforts to keep the other party hereto fully
informed as to the status of any such Claim or legal proceeding for which it is
conducting a defense.
(e) FAILURE TO GIVE TIMELY NOTICE. A failure by a Claiming Party to
give timely, complete or accurate notice as provided in this Section 8 will not
affect the rights or obligations of any party hereunder except and only to the
extent that, as a result of such failure, any party entitled to receive such was
damaged as a result of such failure to give timely notice.
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9. CERTAIN DEFINITIONS. For purposes of this Agreement, the term:
(a) "AFFILIATE" shall mean a Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, another Person;
(b) "CENTRALIZED FUNCTION EXPENSES" shall mean all fees and expenses
(whether incurred before or after the Effective Date) relating to activities of
the Partnership on or before the Effective Date which (i) are common to the
Norco Business and the S&O Business (such as certain fees and expenses of legal,
accounting, tax and other professional advisers and certain insurance, IBNR, and
tax expenses) and (ii) are not included in the Norco Business or the S&O
Business, provided that interest on the Partnership Debt and the health care
expenses described in Section 3(d)(ii) are not Centralized Function Expenses.
(c) "CLAIMS" shall mean all claims, demands, debts, losses,
obligations, liabilities, costs, expenses, rights of action and causes of
action, orders, notices, suits, grievances, proceedings, disputes, arbitrations,
investigations, and other claims for relief or remuneration, of any nature
whatsoever, whether known or unknown, suspected or unsuspected, fixed or
contingent, legal or equitable, arising under past, present or future state law,
federal law or otherwise.
(d) "GOVERNMENTAL AUTHORITY" shall mean any court (federal, state,
local, foreign or otherwise), any arbitration or other alternative dispute
mechanism, any federal, state, local, foreign or other government or
governmental department, agency, board, commission, bureau or instrumentality
and any other regulatory authority;
(e) "LICENSES" shall mean all licenses, permits, certificates,
authorizations, approvals or consents of any Governmental Authority.
(f) "LIENS" shall mean all title defects, charges, claims,
restrictions, liens, pledges, security interests, mortgages, tenancies and other
possessory interests, conditional sale or other title retention agreements,
assessments, easements, rights of way, covenants, restrictions, rights of first
refusal, encroachments and other burdens, options, restrictions or encumbrances
of any kind;
(g) "LOSSES" shall mean any and all damages, losses, costs,
obligations, judgments, or liabilities (whether based on contract, tort or
otherwise), including, without limitation, all taxes, and all reasonable
expenses (including, without limitation, interest, penalties and attorneys' and
accountants' fees and disbursements incurred in the investigation and defense of
Claims).
(h) "NORCO ASSETS" shall mean the facilities, assets, properties and
rights, including, but not limited to all real property, machinery, equipment,
inventory, contracts, Records, Receivables (excluding the Norco Trade
Receivables), Licenses and intangible property, relating to, arising out of or
resulting from Norco's operation and ownership of its window and door business
which were contributed to the Partnership under the terms of the Partnership
Formation Agreement and which are owned by the Partnership immediately prior to
the Effective Date, together with all facilities, assets, properties and rights,
including, but not limited to all real property, machinery, equipment,
inventory,
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contracts, Records, Receivables (excluding the Norco Trade Receivables),
Licenses and intangible property, thereafter acquired by the Partnership
relating to, arising out of or resulting from the operation of such window and
door business which are owned by the Partnership immediately prior to the
Effective Date; provided, however, that notwithstanding anything in this
definition to the contrary, the Norco Assets do not include any of the Norco
Trade Receivables or Vinyl Assets.
(i) "NORCO BUSINESS" shall mean the design, manufacture, testing,
marketing, distribution and sale of windows and doors and related products using
the Norco Assets.
(j) "NORCO EMPLOYEES" shall mean (i) all persons employed by the
Partnership on the Effective Date (including any employees on authorized leave
of absence, sick pay leave or short-term disability) who spend the principal
amount of their time working on matters relating to the Norco Business and (ii)
Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx and Xxxxxx Xxxx.
(k) "XXXXXX ASSETS" shall mean the facilities, assets, properties and
rights, including, but not limited to all real property, machinery, equipment,
inventory, contracts, Records, Receivables, Licenses and intangible property,
relating to, arising out of or resulting from Xxxxxx'x operation and ownership
of its window and door business which were contributed to the Partnership under
the terms of the Partnership Formation Agreement and which are owned by the
Partnership immediately prior to the Effective Date, together with all
facilities, assets, properties and rights, including, but not limited to all
real property, machinery, equipment, inventory, contracts, Records, Receivables,
Licenses and intangible property, thereafter acquired by the Partnership
relating to, arising out of or resulting from the operation of such window and
door business which are owned by the Partnership immediately prior to the
Effective Date.
(l) "XXXXXX BUSINESS" shall mean the design, manufacture, testing,
marketing, distribution and sale of windows and doors and related products using
the Xxxxxx Assets.
(m) "PARTNERSHIP DEBT" shall mean with respect to a given date, the
amount of debt, including unpaid principal and accrued interest thereon, owed by
the Partnership to TJI as of such date.
(n) "PERSON" shall mean an individual, corporation, limited liability
company, partnership, joint venture, association, trust, unincorporated
organization or, as applicable, any other entity;
(o) "RECEIVABLES" shall mean all accounts receivable, notes
receivable and other receivables, in each case whether billed or unbilled.
(p) "RECORDS" shall mean all books and records, customer files,
customer lists and records, vendor files, vendor lists and records, cost files
and records, credit information, business records and plans, studies, surveys,
reports, correspondence, sales and promotional literature and materials,
advertising and advertising copy, and other similar materials, microfilm,
microfiche, computer records, computer software, and all similar data, documents
and items.
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(q) "SEALRITE ASSETS" shall mean the facilities, assets, properties
and rights, including, but not limited to all real property, machinery,
equipment, inventory, contracts, Records, Receivables, Licenses and intangible
property, relating to, arising out of or resulting from SealRite's operation and
ownership of its window and door business which were contributed to the
Partnership under the terms of the Partnership Formation Agreement and which are
owned by the Partnership immediately prior to the Effective Date, together with
all facilities, assets, properties and rights, including, but not limited to all
real property, machinery, equipment, inventory, contracts, Records, Receivables,
Licenses and intangible property, thereafter acquired by the Partnership
relating to, arising out of or resulting from the operation of such window and
door business which are owned by the Partnership immediately prior to the
Effective Date.
(r) "SEALRITE BUSINESS" shall mean the design, manufacture, testing,
marketing, distribution and sale of windows and doors and related products using
the SealRite Assets.
(s) "S&O BUSINESS" shall mean the Xxxxxx Business and the SealRite
Business, collectively.
(t) "VINYL ASSETS" shall mean the fixed assets and inventory owned by
the Partnership and used in connection with the operations of the Vinyl Plant;
provided that the Vinyl Assets do not include any of the office furniture used
in connection with the operation of the Vinyl Plant.
(u) "VINYL PLANT" shall mean that certain Norco vinyl plant located
at Indianapolis, Indiana.
(v) "VINYL PLANT CLOSING DATE" shall mean January 12, 1996 or such
other date as may hereafter be agreed to in writing by Norco and the
Partnership.
10. MISCELLANEOUS.
(a) PRESS RELEASE AND ANNOUNCEMENTS. No party will issue any press
release or announcement relating to the subject matter of this Agreement prior
to the Effective Date without the prior approval of the other parties; provided
that any party may make any public disclosure it believes in good faith is
required by law or regulation (in which case the disclosing party will advise
the other parties prior to making such disclosure).
(b) EXPENSES. Each of the parties hereto will bear all legal,
accounting, investment banking and other expenses incurred by it or on its
behalf in connection with the transactions contemplated by this Agreement.
Norco shall bear all transfer and sales taxes and similar expenses relating to
the transfer of the Norco Assets from the Partnership to Norco.
(c) INTEGRATION CLAUSE. This Agreement contains the entire agreement
and understanding concerning the subject matter hereof, and supersedes and
replaces all prior and contemporaneous negotiations, proposed agreements and
agreements, written and oral, relating to
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such subject matter. There are no agreements, representations or warranties
between the parties hereto as to the subject matter hereof other than those
provided herein. All Exhibits and Schedules hereto shall be considered a part
hereof with the same force and effect as if the same had been specifically set
forth in this Agreement.
(d) AMENDMENT. This Agreement (including this Section 10(d)) may not
be amended or modified, nor may any performance or breach of, or default under,
any condition or obligation hereunder be waived, except by a writing signed by
the party or an authorized representative of the party against whom enforcement
of such amendment, modification or waiver is sought. No written waiver of the
performance or breach of, or default under, any provision of this Agreement
shall be deemed to be a waiver of any other performance, or breach of, or
default under the same or any provision of this Agreement.
(e) BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors and assigns, including, without limitation, any successor by
purchase, merger, consolidation, reorganization or otherwise to all or
substantially all of the business and/or assets of any party hereto.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) GOVERNING LAW. All questions concerning this Agreement,
including the construction, validity, performance, enforceability, enforcement
and the nature and extent of the enforcement remedies, shall be governed by the
laws of the State of Delaware, without giving effect to its choice of law
provisions.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute the same agreement.
(i) HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(j) FURTHER ASSURANCES. Each party agrees to perform any further
acts and execute and deliver any further documents that may be reasonably
necessary to carry out the provisions of this Agreement and the transactions
contemplated hereby.
(k) PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and, nothing in this Agreement
except for Section 8 hereof, express or implied, is intended to confer upon any
other Person any rights or remedies of any nature whatsoever under or by reason
of this Agreement.
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(l) SUCCESSORS AND ASSIGNS. No party hereto may assign or delegate
any of such party's rights or obligations under this Agreement without the
written consent of the other parties hereto. All covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto will be
binding upon and enforceable against the respective successors and assigns of
such party and will be enforceable by and will inure to the benefit of the
respective successors and permitted assigns of such party.
(m) NOTICE. Any notice necessary or desirable hereunder shall be in
writing and shall be deemed sufficiently given when hand delivered or when sent
by registered or certified United States mail, postage prepaid, or sent via
facsimile (evidenced by a written confirmation of receipt) as follows:
If to Norco:
Norco Windows, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxx
Fax: (000) 000-0000
with a copy to:
TJ International, Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx
Fax: (000) 000-0000
and, if to the Partnership to:
Outlook Windows Partnership, L.P.
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxxxxxx
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
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or to such other address as any party hereto may specify to the other parties in
a notice complying with this Section 10.
[This space intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
NORCO WINDOWS, INC. OUTLOOK WINDOW PARTNERSHIP, L.P.
By: SEALRITE WINDOWS, INC.,
as general partner
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Title: Chairman of the Board Name: Xxxxx Xxxxxxxx
Title: Vice President
XXXXXX WINDOW CORP. By: XXXXXX WINDOW CORP.,
as general partner
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxxx
---------------------------- ---------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxx Xxxxxxxx
Title: Chairman of the Board Title: Vice President
SEALRITE WINDOWS, Inc. By: NORCO WINDOWS, INC.,
as general partner
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: Chairman of the Board
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