Exhibit 3.38
FOURTH AMENDMENT TO JOINT VENTURE AGREEMENT
OF RIVERSIDE CEMENT COMPANY
THIS FOURTH AMENDMENT TO JOINT VENTURE AGREEMENT OF RIVERSIDE CEMENT
COMPANY (the "Amendment"), effective the 31st day of January, 2003 by and
between TXI RIVERSIDE INC., a Delaware corporation ("TXIR") and TXI CALIFORNIA
INC., a Delaware corporation ("TXIC").
RECITALS:
WHEREAS, RVC Venture Corp., a Delaware corporation ("RVC"), and
Riverside Cement Company, a Delaware corporation (the "Company"), entered into
that certain Joint Venture Agreement effective January 1, 1991 (the "Original
Agreement"), whereby RVC and the Company agreed to form and operate a California
general partnership named Riverside Cement Company (the "Partnership") in
accordance with the terms set forth in the Agreement; and
WHEREAS, on or about January 31, 1995, the Company (thereafter known
as Beazer West Cement Company) transferred all of its rights, title and interest
in the Partnership to Ssangyong/Riverside Venture Corp., a California
corporation (SsRVC); and
WHEREAS, effective December 31, 1998, RVC transferred all of its
rights, title and interest in the Partnership to TXIR and SsRVC transferred all
of its rights, title and interest in the Partnership to TXIC; and
WHEREAS, since the inception of the Partnership the Original Agreement
has been amended previously through (i) Consent and Amendment to Joint Venture
Agreement of Riverside Cement Company dated May 31, 1991 (the "Consent
Amendment"); (ii) First Amendment to Joint Venture Agreement of Riverside Cement
Company dated Janaury 30, 1995 (the "First Amendment"); (iii) Second Amendment
to Joint Venture Agreement of Riverside Cement Company dated February 1995 (the
"Second Amendment") and (iv) Third Amendment to Joint Venture Agreement of
Riverside Cement Company dated January 1, 1998 (the "Third Amendment"); and
WHEREAS, hereinafter the "Agreement" shall refer to the Original
Agreement, the Consent Amendment, the First Amendment, the Second Amendment and
the Third Amendment; and
WHEREAS, TXIR and TXIC as the sole partners of the Partnership desire
to amend certain provisions of the Agreement regarding the management of the
Partnership.
WITNESSETH:
NOW THEREFORE, premises considered and in consideration of the mutual
promises and covenants of the parties hereto, the sufficiency of which is hereby
mutually acknowledged, the parties agree as follows:
1. Capitalized Terms. Unless otherwise defined in this Amendment, capitalized
terms herein shall have the meaning set forth in the Agreement.
2. Definitions. Article II of the Agreement is hereby amended to change,
modify, add or delete the following definitions:
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(b) The definition of "Allocable Share" shall be amended to
correctly identify the allocable share of the current Partners under
the Agreement; and therefore, shall provide in its entirety as
follows:
"Allocable Share" shall, with respect to each Partner, be
equal to such Partner's Percentage Interest (as hereinafter
defined)."
(b) The definition of "Business" shall be amended to identify the
business operations of the Partnership under the Agreement; and
therefore, shall provide in its entirety as follows:
"Business" shall mean the following: (i) the manufacture,
importation/exportation, buying and/or selling of cement and/or
building materials of any kind; and/or (ii) the mining, process,
using, marketing, buying or selling of limestone and/or other
construction materials whether or not used in the manufacture of
cement; and (iii) acquiring, owning financing, disposing,
conducting, and operating, trades, services and businesses
related and/or similar to the foregoing; and (iv) engagement in
common enterprises with Affiliates of the Partnership as required
for continued successful operations of the consolidated group of
which the Partnership is a part."
(c) The definition of "Partners" shall be amended to correctly
identify the current the Partners under the Agreement; and therefore,
shall provide in its entirety as follows:
"Partners" shall mean TXIR and TXIC and any person who
succeeds to the Partnership Interest in the Partnership in a
Transfer of such interest permitted by this Agreement."
(d) The definition of "Percentage Interests" shall be amended to
correctly identify the percentage interests of the current Partners
under the Agreement; and therefore, shall provide in its entirety as
follows:
"Percentage Interests" of the Partners shall mean the
percentages set forth opposite their respective names below:
TXIR 51%
TXIC 49%
(e) A definition of "TXIC" shall be added to the Agreement; such
definition providing in its entirety as follows:
"TXIC" shall mean TV California Inc.."
(f) A definition of "TXIR" shall be added to the Agreement; such
definition providing in its entirety as follows:
"TXIR" shall mean TXI California Inc."
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3. Purpose of the Partnership. Article III of the Agreement is hereby amended
to expand the purpose of the Partnership; and therefore, shall provide in
its entirety as follows:
"ARTICLE III
PURPOSE
The purposes and businesses of the Partnership shall be:
(a) to engage in the Business; and
(b) to engage in such other businesses as the Partners may determine;
and
(c) to enter into, from time to time, as debtor or guarantor or both,
such financing arrangements (whether separately or in conjunction
with Affiliates of any Partner) as the Partners may determine to
be necessary, appropriate or advisable in the operation of the
Business and of the businesses of the consolidated group of which
the Partnership is a part; and
(d) to mortgage, pledge, assign, grant a security interest in, or
otherwise encumber, lease, exchange or otherwise dispose of, all
or a part of the assets (including equity investments in
subsidiaries or Affiliates of the Partnership) to secure such
financing arrangements permitted in clause (c) above; and
(e) to engage in all activities and to enter into, exercise the
rights and enjoy the benefits under, and discharge the
obligations of the Partnership pursuant to, all contracts,
agreements and documents that may be necessary, appropriate or
advisable to enable the Partnership to accomplish the purposes
set forth in clauses (a) through (d) inclusive."
4. Principal Place of Business. Article V shall be amended to update the
principal place of Business of the Partnership; and therefore Article V
shall provide, in its entirety, as follows
"ARTICLE V
PRINCIPAL PLACE OF BUSINESS
The principal place of business of the Partnership shall be at
the Partnership's Ontario, California offices located at One Corporate
Plaza, 3500 Porsche Way, Suite 150, P.O. Ontario, California or such
other location as the Management Committee may determine."
5. Section 7.2 shall be amended to add a subsection (f) to clarify the
Management Committee's right to select and appoint other individuals to
perform duties for the Partnership; and therefore Section 7.2(f) shall
provide, in its entirety, as follows:
"7.2 General Manager and Other Delegates
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"(f) Notwithstanding anything herein to the contrary, the
Management Committee shall have the right to select and appoint,
from time to time, other individuals to perform various duties
for the Partnership and/or assist the General Manager in the
General Manager's duties and powers set forth in this Agreement
in order to manage, administer and operate the business and
affairs of the Partnership for the purposes set forth in Article
III."
6. In the Third Amendment to the Agreement, Section 13.1 of the Agreement was
amended to change in the Partnership's fiscal year to a June 1 through May
31 fiscal year, however such amendment contained a typographical error.
Therefore, Section 13.1 of the Agreement is hereby corrected to provide in
its entirety, effective January 1, 1998, as follows:
"13.1 Fiscal Year. The fiscal year of the Partnership shall
commence on June 1 of each calendar year and end on May 31 of the next
succeeding calendar year."
7. Any references in the Agreement (or any Amendment thereto) to the Company
or SR other than in any opening paragraph, or as the context otherwise
requires, shall mean TXIR.
8. Except as amended hereby, all terms and conditions of the Agreement shall
remain the same, unchanged, and in effect.
IN WITNESS WHEREOF, this Fourth Amendment of Joint Venture Agreement
of Riverside Cement Company is executed effective the 31st day of January, 2003.
TXI RIVERSIDE INC.
By: /s/ Mel G. Brekhus
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Mel G. Brekhus
President
TXI CALIFORNIA INC.
By: /s/ Mel G. Brekhus
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Mel G. Brekhus
President
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