Exhibit 3.2 (ah)
SECOND AMENDMENT
TO THE JOINT VENTURE AGREEMENT OF
PINERY JOINT VENTURE
THIS SECOND AMENDMENT TO THE JOINT VENTURE AGREEMENT OF PINERY JOINT
VENTURE (this "Second Amendment") is made and entered into as of the 6th day of
September 2005 by and among Xxxxxx Xxxxx USA L.L.C., a Nevada limited liability
company ("Ashton USA"), and Ashton Denver Residential L.L.C., a Nevada limited
liability company ("Ashton Denver").
RECITALS
A. Pursuant to the Joint Venture Agreement (the "JV Agreement), dated as of
September 29, 1993, by and among Elly Colorado, Inc., Xxxxxx Colorado, Inc.,
Xxxxx Colorado, Inc., Xxxxx Colorado, Inc., Seymour Colorado, Inc. and Hayden
Colorado, Inc. (collectively, the "Colorado Entities"), as amended by the First
Amendment to Joint Venture Agreement of Pinery Joint Venture (the "First
Amendment" and the JV Agreement as amended by the First Amendment, the "Amended
JV Agreement"), dated as of May 31, 1999, by and among Ashton USA and the
Colorado Entities, Ashton USA is sole Venturer (as defined in the Amended JV
Agreement) in the Pinery Joint Venture (the "Venture").
X. Xxxxxx USA wishes to admit Ashton Denver as a Venturer in the Venture.
X. Xxxxxx USA and Ashton Denver wish to amend the Amended JV Agreement in
order to admit Ashton Denver as a Venturer and to make certain conforming
changes to reflect that the Colorado Entities are no longer Venturers.
NOW, THEREFORE, for and in consideration of the premises and the respective
agreements set forth herein, the parties agree as follows:
1. Capitalized terms not defined herein shall have the meanings ascribed
to them in the Amended JV Agreement.
2. Ashton Denver is hereby admitted as a Venturer.
3. Section 3 of the Amended JV Agreement is deleted in its entirety and
replaced with the following:
"The undivided interest of each Venturer in the Venture (hereinafter
referred to as "Proportionate Interest") shall be as follows:
Ashton USA - 99.999%
Ashton Denver - 0.001%"
4. A Venturer's funding obligations pursuant to Section 4 of the Amended
JV Agreement shall be equal to such Venturer's Proportionate Interest.
5. Section 5 of the Amended JV Agreement is deleted in its entirety and
replaced with the following:
"Ashton USA shall have the authority to borrow money in the name of
and on behalf of the Venture and to cause the Venture to guarantee the
indebtedness of another person or entity."
6. Section 8 of the Amended JV Agreement is deleted in its entirety and
replaced with the following:
"Ashton USA may engage an accounting firm of its choosing to audit the
Venture's books and accounts."
7. Section 14(a) of the Amended JV Agreement is deleted in its entirety
and replaced with the following:
"The management of the Venture shall be vested in Ashton USA."
8. Section 14(b) of the Amended JV Agreement is deleted in its entirety
and replaced with the following:
"All deeds, transfers, contracts, agreements and other documents
required to be executed by or on behalf of the Venture, from time to
time, including but not limited to checks and documents to open and/or
close checking accounts for the Venture, shall be executed on the
Venture's behalf by Ashton USA, as the authorized representative of
the Venture."
9. Section 23 of the Amended JV Agreement is deleted in its entirety and
replaced with the following:
"The Venturers hereby designate Ashton USA as the Venture's "Tax
Matters Partner", as defined in the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder."
10. The address of both of the Venturers for the purposes of giving
notices and other written communications pursuant to Section 24 of the
Amended JV Agreement is: 1080 Xxxxxxx Xxxxxx Xxxx, Xxxxxxxx 000, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000.
11. This Agreement may be executed by facsimile or Adobe PDF and in
various counterparts that together shall constitute one and the same
instrument.
SIGNATURES APPEAR ON NEXT PAGE
2
IN WITNESS WHEREOF, the parties have duly executed this Second Amendment as
of the date first written above.
XXXXXX XXXXX HOMES USA L.L.C.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
ASHTON DENVER RESIDENTIAL L.L.C.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Manager
3
