Exhibit 3.35
FIRST AMENDMENT TO
JOINT VENTURE AGREEMENT
OF
RIVERSIDE CEMENT COMPANY
THIS FIRST AMENDMENT ("First Amendment") to the Joint Venture Agreement of
Riverside Cement Company, a California partnership (the "Partnership"), is
entered into this 30th day of January, 1995, but effective as of the Effective
Time (as hereinafter defined), by and among Beazer West Cement Company, a
Delaware corporation, formerly known as Riverside Cement Company ("BWCC"), RVC
Venture Corp., a Delaware corporation ("RVC"), and Ssangyong/Riverside Venture
Corp., a California corporation ("SR").
W I T N E S S E T H:
WHEREAS, BWCC and RVC have entered into that certain Joint Venture
Agreement, dated as of January 1, 1991 as modified by that certain Consent and
Amendment to Joint Venture Agreement of Riverside Cement Company dated as of May
31, 1991 (as modified, the "Original Partnership Agreement"), pursuant to which
the parties thereto formed the Partnership; and
WHEREAS, pursuant to a Capital Contribution and Partnership Interest
Purchase Agreement dated as of December 16, 1994 (the "Agreement") among BWCC,
RVC, Ssangyong (Pacific), Inc., a California corporation ("SYP"), Beazer West,
Inc., a Delaware corporation ("BWI"), Beazer USA, Inc., a Delaware corporation
("USA"), Ssangyong Cement Industrial Co., Ltd., a Korean corporation
("Ssangyong"), and Hanson America Inc., a Delaware corporation ("HAI"), each of
BWCC and RVC have made additional capital contributions to the Partnership and,
as a consequence, the Percentage Interest of BWCC in the Partnership is 49% and
the Percentage Interest of RVC in the Partnership is 51%; and
WHEREAS, pursuant to the Agreement and certain instruments of assignment
from SYP to SR and BWCC to SR (the "Assignments"), BWCC will assign to SR its
Partnership Interest in the Partnership, effective as of the Effective Time; and
WHEREAS, SR desires to be admitted to the Partnership as a Partner,
effective as of the Effective Time; and
WHEREAS, pursuant to the Agreement and the Assignments, BWCC will cease to
be a Partner in the Partnership, effective as of the Effective Time; and
WHEREAS, the parties hereto desire to amend the Original Partnership
Agreement in certain respects, effective as of the Effective Time, the Original
Partnership Agreement as amended hereby being referred to herein as the
"Partnership Agreement";
-1-
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. Defined Terms. All capitalized terms used herein but not defined herein
shall have the meanings assigned to them in the Original Partnership Agreement.
2. Agreement to be Bound by Partnership Agreement. Effective as of the
Effective Time, SR hereby (a) agrees to be bound by the Partnership Agreement,
(b) assumes all of the duties, liabilities, obligations, and responsibilities of
BWCC pursuant to the Partnership Agreement except for the retained obligations
as defined in the Agreement (the "Retained Obligations") from and after the
Effective Time hereof and (c) agrees to become a Partner of the Partnership as a
successor to BWCC and to perform and fulfill the obligations and duties of a
Partner under the Partnership Agreement.
3. Amendment to Assumed Name Certificate. Each of BWCC, RVC and SR agree to
execute and file all amendments to the assumed name certificate of the
Partnership required by the Assumed Business or Professional Name Act of the
State of California and the Partnership Agreement in order to evidence the
substitution of SR for BWCC as a Partner of the Partnership.
4. Consent to Assignment. Pursuant to Section 11.1(a) and (b) of the
Partnership Agreement, BWCC and RVC hereby consent to (a) the assignment by BWCC
of its Partnership Interest in the Partnership to SR and (b) the substitution
and admission of SR as a substitute Partner of the Partnership in the place of
BWCC, effective as of the Effective Time, and RVC hereby waives its right to
receive notice of or to acquire the Partnership Interest which is the subject of
the foregoing consents. RVC hereby acknowledges and agrees that, from and after
the Effective Time, SR shall be a general partner of the Partnership, entitled
to all of the rights, privileges and benefits thereof under the Partnership
Agreement and the Partnership Act. The parties waive any provision of the
Partnership Agreement that might otherwise prohibit the Transfer.
5. Release from Obligations.
(a) As of the Effective Time (i) BWCC will cease to be a partner of
the Partnership and, except for the Retained Obligations, shall have no further
obligations or duties as a partner of the Partnership arising from and after the
Effective Time.
(b) Without limitation of the release provided in paragraph (a) above,
the parties hereto acknowledge that, as of the Effective Time, BWCC and its
Affiliates (as defined in the Original
-2-
Partnership Agreement) are released from (i) the obligations of BWCC under the
Services Agreement and Original Partnership Loan referred to in Section 7.8 of
the Original Partnership Agreement, (ii) the restrictions on BWCC and its
Affiliates, which have heretofore existed pursuant to Section 7.10 thereof, and
(iii) the restrictions on transferability of the capital stock of BWCC, BWI and
each direct and indirect subsidiary of BWI, which have heretofore existed
pursuant to Section 11.3 thereof; provided, however, that nothing contained
herein or resulting therefrom shall prohibit the exercise or enforcement of
rights and remedies against BWCC and BWI under the Stock Purchase Agreement
dated February 2, 1991, by and among BWCC, BWI, and Ssangyong, joined by SYP.
6. Amendments to the Partnership Agreement. Effective as of the Effective
Time, the Original Partnership Agreement shall be revised and amended by adding,
deleting or amending the following provisions:
(a) A definition of "Agreement" shall be added to Article II to read
as follows:
"Agreement" shall mean this Joint Venture Agreement, as amended from
time to time.
(b) A definition of "Partner" shall be added to Article II to read as
follows:
"Partner" shall mean RVC and SR and any person who succeeds to a
Partnership Interest in the Partnership in a Transfer of such interest
permitted by this Agreement.
and the definition of such term shall be deleted from the opening paragraph
of the Original Partnership Agreement.
(c) A definition of "SR" shall be added to Article II to read as
follows:
"SR" shall mean Ssangyong/Riverside Venture Corp.
(d) Section 13.5 shall be amended to read as follows:
The Partners designate BWCC as the tax matters partner of the
Partnership pursuant to Section 6231(a)(7) of the Code, with respect
to tax periods ending on or before the date of the Effective Time, and
authorize the General Manager to take any and all action necessary to
confirm such designation.
-3-
The Partners designate RVC as the tax matters partners of the
Partnership pursuant to Section 6231(a)(7) of the Code, with respect
to tax periods ending after the date of the Effective Time, and
authorize the General Manager to take any and all action necessary to
confirm such designation.
(e) References in the Original Partnership Agreement to the Company,
except in the opening paragraph, and as the context otherwise requires,
shall mean SR.
7. Reconstitution. If the Transfer by BWCC of its Partnership Interest in
the Partnership constitutes a dissolution of the Partnership pursuant to the
Partnership Act and applicable law, then RVC and SR, being all of the remaining
Partners of the Partnership following such Transfer, hereby agree that the
Partnership shall be reconstituted and shall continue the business of the
Partnership, effective as of the Effective Time.
8. Computation of Distributive Share. Notwithstanding the provisions of
Section 8.2(a) of the Original Partnership Agreement, the parties hereby agree
that the Transfer of Partnership Interest by BWCC as contemplated hereby shall
be treated as if made at 12:01 a.m. on the date of the Effective Time and shall
not be deemed to have been made on the first or sixteenth day of the month in
which such Transfer is made. The parties also hereby agree that BWCC's and RVC's
distributive shares of partnership income, gain, loss, deductions and credits
for the period July 1, 1994 through the Effective Time shall be computed through
an interim closing of the Partnership's books as of the date of the Effective
Time, and agreed upon by BWCC and RVC as promptly after the Effective Time as
may be practicable.
9. Notice of Certain Appointments. Pursuant to Section 7.1.3 of the
Original Partnership Agreement, SR shall deliver a notice to the General Manager
regarding the appointment of SR's initial representative members of the
Management Committee and its initial Authorized Representatives.
10. Other Provisions Unchanged. Except as amended hereby, all other
provisions of the Original Partnership Agreement shall remain unchanged and in
full force and effect.
11. Confirmation by Parties. By executing this First Amendment, each of the
undersigned parties hereto expressly adopts, approves and confirms (a) each of
the provisions contained herein, (b) each of the Transfers referred to herein,
(c) each of the amendments to the Original Partnership Agreement contained
herein and (d) their respective acknowledgments and representations contained
herein.
-4-
12. Effective Time. The "Effective Time" shall mean 12:01 a.m. on the date
when the Assignments are delivered and become effective.
IN WITNESS WHEREOF, the parties hereto, constituting all of the existing
and new Partners of the Partnership, have executed this First Amendment as of
the date first above written.
BEAZER WEST CEMENT COMPANY
By: /s/ Illegible
-----------------------------
Title: V.P.
RVC VENTURE CORP.
By:
-----------------------------
Title:
--------------------------
SSANGYONG/RIVERSIDE VENTURE CORP.
By:
-----------------------------
Title:
--------------------------
-5-
12. Effective Time. The "Effective Time" shall mean 12:01 a.m. on the date
when the Assignments are delivered and become effective.
IN WITNESS WHEREOF, the parties hereto, constituting all of the existing
and new Partners of the Partnership, have executed this First Amendment as of
the date first above written.
BEAZER WEST CEMENT COMPANY
By: /s/ Illegible
-----------------------------
Title: V.P.
RVC VENTURE CORP.
By: /s/ Illegible
-----------------------------
Title: Secretary
SSANGYONG/RIVERSIDE VENTURE CORP.
By:
-----------------------------
Title:
--------------------------
-5-
12. Effective Time. The "Effective Time" shall mean 12:01 a.m. on the date
when the Assignments are delivered and become effective.
IN WITNESS WHEREOF, the parties hereto, constituting all of the existing
and new Partners of the Partnership, have executed this First Amendment as of
the date first above written.
BEAZER WEST CEMENT COMPANY
By: /s/ Illegible
-----------------------------
Title: V.P.
RVC VENTURE CORP.
By:
-----------------------------
Title:
--------------------------
SSANGYONG/RIVERSIDE VENTURE CORP.
By: /s/ Illegible
-----------------------------
Title: Secretary
-5-