Exhibit 3.34
CONSENT AND AMENDMENT TO
JOINT VENTURE AGREEMENT OF
RIVERSIDE CEMENT COMPANY
This Consent and Amendment (the "Amendment") is entered into effective as
of the 31st day of May, 1991 (the "Effective Date"), by and between Beazer West
Cement Company, formerly Riverside Cement Company, a Delaware corporation (the
"Company") and RVC Venture Corp., a Delaware corporation ("RVC").
W I T N E S E T H:
WHEREAS, Riverside Cement Company, a California general partnership (the
"Partnership") was formed pursuant to that certain Joint Venture Agreement
entered into as of January 1, 1991; and
WHEREAS, the Company has contracted with Ssangyong Cement Industrial Co.,
Ltd., a Korean corporation ("Ssangyong"), pursuant to that certain Stock
Purchase Agreement dated February 2, 1991, to sell all of the issued and
outstanding shares of capital stock of RVC (the "Stock") to Ssangyong; and
WHEREAS, pursuant to Section 11.3 of the Joint Venture Agreement, the Stock
is not transferable to Ssangyong without the prior written consent of the
Company and, subject to the terms and conditions hereof, the Company is willing
to consent to said transfer of the Stock to Ssangyong; and
WHEREAS, the Closing contemplated in the Stock Purchase Agreement is
conditioned upon an amendment to the Joint Venture Agreement and the Company and
RVC desire to amend the Joint Venture Agreement as hereinafter provided in order
to accurately reflect the agreement of the parties as of the date hereof, all as
more particularly set out further herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto consent and agree as follows:
1. All terms used herein which are capitalized and not defined in this
Amendment shall have the meanings given to them in the Joint Venture Agreement.
2. As of the Effective Date of this Amendment, the Company has sold,
transferred and conveyed the Stock of RVC to Ssangyong. Pursuant to the
provisions of Section 11.3 of the Joint Venture Agreement, the Company hereby
consents to such transfer.
1
3. The Partners hereby waive their rights to rescind the Partnership and
the Joint Venture Agreement pursuant to the provisions of Section 4.2 of the
Joint Venture Agreement.
4. Pursuant to the provisions of Article XVIII of the Joint Venture
Agreement, the Partners hereby amend the following provisions of the Joint
Venture Agreement:
(a) The reference in Article II within the definition of the "Buy-Sell
Closing" to "Section 15.2(e)" is hereby amended to refer to "Section 15.1(d)."
(b) The references in Article II within the definitions of the "Buy-Sell
Notice," "Recipient Partner," and "Tendering Partner" to "Section 15.2(a)" are
hereby amended to refer to "Section 15.1(a)."
(c) Section 6.2.2(d) is hereby amended to read in its entirety as follows:
"(d) If all or any portion of a Capital Request is approved by the
Management Committee as provided in paragraph (c) above (the "Capital
Call"), then each Partner shall contribute to the Partnership, on or before
the date (the "Due Date") that is 20 days after the date on which the
relevant Capital Request was delivered, cash equal to its Allocable Share
of the approved Capital Call. In addition, notwithstanding any provision of
this Agreement to the contrary, upon the waiver by the Partners of their
rights, pursuant to the provisions of Section 4.2, to rescind the
Partnership and this Agreement, and prior to the sale of any of the capital
stock of RVC by the Company, the Company shall make a special contribution
to the Partnership equal to the aggregate amounts of all losses theretofore
allocated to the Company pursuant to Section 8.1(e)."
(d) The references in Section 6.2.5 and 7.10.1 to the "Formation Agreement"
are hereby amended to refer to the "Stock Purchase Agreement."
(e) Section 7.1.2 is hereby amended to read in its entirety as follows:
"7.1.2 Composition. The Management Committee shall consist of seven
members. Each Partner shall have the right to appoint three members of the
Management Committee, one of whom shall be designated as such Partner's
Authorized Representative, and the Partners shall jointly appoint the
seventh member of the Management Committee. The seventh member of the
Management Committee shall be a non-voting member thereof and, if he is not
otherwise employed by either Partner or the Partnership, shall be entitled
to receive such
2
compensation from the Partnership as the Management Committee may approve
from time to time. Each Partner may, by written notice delivered to the
other Partner at any time or from time to time, replace any or all of its
representative members of the Management Committee or change its Authorized
Representative. Concurrently with or promptly after the delivery of any
notice pursuant to the preceding sentence, the Partner giving such notice
shall deliver a copy to the General Manager, but neither the failure to
deliver nor any delay in delivering such copy to the General Manager shall
affect the validity or effectiveness of such notice. Either Partner may, by
written notice delivered to the other Partner at any time or from time to
time, remove the seventh member of the Management Committee, whose
replacement, by the mutual agreement of the Partners, shall thereupon be
placed on the agenda of the next meeting of the Management Committee."
(f) The word "additional" in clause (ii) of Section 7.1.4(b) is hereby
amended to read "addition" and the word "member" in the third to the last line
of Section 7.1.4(b) is hereby amended to read "members."
(g) Insert the word "the" between "by" and "Management Committee" in the
last line of Section 7.2.2(j).
(h) Section 8.1 is hereby amended to read in its entirety as follows:
"8.1 Allocations of Income and Loss
(a) Except as otherwise provided in Sections 8.1(b), 8.1(c), 8.1(d),
8.1(e) and 8.2 below, all items of income and loss of the Partnership, as
well as each item of income, gain, loss and deduction for federal income
tax purposes shall be allocated to the Partners, pro rata in accordance
with their respective Percentage Interests. The Partners hereby agree that
their Percentage Interests shall constitute their "interests in the
Partnership's profits" for purposes of Treas. Reg. (S)
1.752-1T(e)(3)(ii)(C).
(b) To the extent that the Partnership has any "partner nonrecourse
deductions" under Treas. Reg. (S) 1.704-1T(b)(4)(iv)(h)(2) and (3), such
deductions shall be allocated entirely to the Partner who is treated as
bearing the "economic risk of loss" with respect to the Partnership
liability which is related to such deductions pursuant to Treas. Reg.
(S)(S) 1.704-1T(b)(4)(iv)(K)(1) and 1.752-1T(d)(3). In addition, to the
extent there is a decrease in a Partner's share of the Partnership's
"minimum gain" that is attributable to a "partner nonrecourse debt," as
such terms are used in Treas. Reg. (S) 1.704-1T(b)(4)(iv)(h), such Partner
shall be allocated items of income before any other allocations are
3
made pursuant to Section 8.1(a), such allocations to be made in accordance
with the provisions of Treas. Reg.(S) 1.704-1T(b)(4)(iv)(h)(4).
(c) The Partners understand that items of income, gain, loss, and
deduction with respect to the Assets must be separately determined and
allocated to the Partners for federal income tax purposes in the manner
prescribed by Section 704(c) of the Code. Accordingly, notwithstanding
Section 8.1(a) above or any other provision of this Agreement to the
contrary, the Partners hereby agree that their distributive shares of such
items shall be separately determined for federal income tax purposes and
allocated between them pursuant to the principles of Section 704(c) of the
Code.
(d) Interest income earned while on deposit in the Deposit Account and
attributable to a Capital Call that is returned to a Partner pursuant to
Section 6.2.2(e) shall be allocated to such Partner.
(e) Notwithstanding any provision of this Agreement to the contrary,
for so long as RVC is a wholly-owned subsidiary of the Company, all items
of income and loss of the Partnership, as well as each item of income,
gain, loss and deduction for federal income tax purposes shall be allocated
entirely to the Company."
(i) Section 9.1 is hereby amended to read in its entirety as follows:
"9.1 Cash Distributions to the Partners
The Partners agree that it is their intent to distribute surplus cash
flow to the Partners as soon as it is available. The Management Committee
shall review, at least quarterly, the cash position of the Partnership,
considering future cash requirements and cash reserves as may be deemed
reasonably necessary by the General Manager, and, except as provided in
Section 4.2, instruct the General Manager to distribute surplus cash to the
Partners in accordance with their Percentage Interests. Notwithstanding any
provision of this Agreement to the contrary, upon the waiver by the
Partners of their rights, pursuant to the provisions of Section 4.2, to
rescind the Partnership and this Agreement, and prior to the sale of any of
the capital stock of RVC by the Company, the Partnership shall declare a
special distribution to the Company equal to the aggregate amounts of all
income theretofore allocated to the Company pursuant to Section 8.1(e).
Notwithstanding anything in this Agreement to the contrary, unless
otherwise agreed by the Partners, no distributions shall be made by the
Partnership to the Partners
4
until all principal and interest is paid in full on all outstanding Partner
Loans."
(j) Section 11.3 is hereby amended to read in its entirety as follows:
"11.3 Capital Stock of Partners.
No Partner shall permit the transfer of ownership of its capital stock
to any Person to be registered on its stock transfer books unless and until
the other Partner shall have given its prior written consent to such
Transfer. The Company shall cause Beazer West, Inc. and RVC shall cause
Ssangyong Cement Industrial Co., Ltd. to confirm and ratify the foregoing
restrictions on transferability of the capital stock of the Partners, and
of each direct and indirect subsidiary of Beazer West, Inc. or Ssangyong
Cement Industrial Co., Ltd. by which the Partners are controlled as wholly
owned indirect subsidiaries of Beazer West, Inc. or Ssangyong Cement
Industrial Co., Ltd., respectively."
(k) Insert the word "the" at the beginning of clauses (d), (j) and (k) of
Section 12.1, delete the brackets around the figure $10,000,000 in clause (k) of
Section 12.1, and amend clause (1) of Section 12.1 to read in its entirety as
follows:
"(1) the material breach by any Partner of this Agreement; and"
(l) The word "sustain" in clause (vi) of Section 12.2 is hereby amended to
read "sustained."
(m) The date "July 1, 1994" in Section 15.1(a) is hereby amended to read
"July 1, 1996."
(n) The word "its" in clause (i) of Section 16.2(c) is hereby amended to
read "their."
(o) The reference in Section 16.3(a) to the "Northern District of Texas" is
hereby amended to refer to the "Southern District of California."
(p) Insert the phrase "of the average Fair Market Value determination"
after "25%" in Section 16.3(b).
(q) Delete the words "to the" in clause (i) of Section 16.4(a).
(r) Article XVII is hereby amended to read in its entirety as follows:
5
"ARTICLE XVII
NOTICES
Whenever any notice is required or permitted to be given under any
provision of this Agreement, such notice shall be in writing, signed by or
on behalf of the person giving the notice and shall be personally
delivered, transmitted by telecopier, telex or cable, or transmitted by
first class postage prepaid, registered or certified mail with return
receipt requested, as elected by the party giving such notice, addressed as
follows:
(a) if to the Company, to:
P. O. Box 190999
Dallas, Texas 75219-0999
Attn: Royce W. Montgomery, Esq.
Facsimile: (214) 754-5788
(b) if to RVC, to:
Ssangyong Building
12101 Western Avenue
Garden Grove, CA 92641
Attn: D. Y. Kim
Facsimile: (714) 892-9003
(c) if to the Partnership or the General Manager, to:
660 North Diamond Bar Blvd.
Diamond Bar, California 91765
Attn: Jerry W. Farr
Facsimile: (714) 860-5816
Notices shall be deemed to have been given: (i) on the fifth business day
after posting, if mailed first class, (ii) on the date of receipt if
delivered personally, or (iii) on the next business day after transmission
if transmitted by telecopier, telex or cable (and appropriate answerbacks
have been received). Any party hereto may change its address for purpose
hereof by notice to the other parties hereto."
5. As amended hereby pursuant to the foregoing, the Joint Venture Agreement
is hereby ratified and confirmed and shall remain and continue in full force and
effect.
-6-
IN WITNESS WHEREOF, the parties hereto have subscribed to this Amendment as
of the date and year first above written.
BEAZER WEST CEMENT COMPANY,
formerly RIVERSIDE CEMENT
COMPANY
By: /s/ Illegible
-----------------------------
Title: PRESIDENT
RVC VENTURE CORP.
By: /s/ Illegible
-----------------------------
Title: PRESIDENT
The undersigned join in the execution of this Amendment for the sole
purpose of agreeing to be bound by the terms, provisions and conditions of
Section 11.3 of the Joint Venture Agreement, as set forth hereinabove.
SSANGYONG CEMENT INDUSTRIAL
BEAZER WEST, INC. CO., INC.
By: /s/ Illegible By: /s/ Illegible
----------------------------- -----------------------------
Title: PRESIDENT Title: EXECUTIVE VICE PRESIDENT
7