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EXHIBIT 10(l)
FIRST AMENDMENT
TO
MANUFACTURING SUPPORT AGREEMENT
THIS FIRST AMENDMENT TO THE MANUFACTURING SUPPORT AGREEMENT ("First
Amendment") is made and entered into as of November 25, 1996, by and between BP
Chemicals Inc., an Ohio corporation ("BP Chemicals"), and Arcadian Ohio, L.P., a
Delaware limited partnership ("Arcadian").
WHEREAS, BP Chemicals and Arcadian are parties to that certain
Manufacturing Support Agreement dated May 11, 1993 (the "1993 Manufacturing
Support Agreement"); and
WHEREAS, Arcadian and The BOC Group, Inc., a Delaware corporation
("BOC"), are parties to that certain Asset Purchase Agreement dated November 19,
1996 ("1996 Asset Purchase Agreement"), pursuant to which Arcadian is selling or
leasing to BOC, and BOC is purchasing or leasing from Arcadian, among other
assets and properties of Arcadian, certain liquid and solid carbon dioxide
facilities (collectively, the "CO(2) Plant") located at Arcadian's nitrogen
plant in Lima, Ohio, as that plant is defined in the 1993 Manufacturing Support
Agreement ("Nitrogen Plant"); and
WHEREAS, Arcadian and BOC are parties to that certain Manufacturing
Support Agreement, dated November 20, 1996 (the "1996 Manufacturing Support
Agreement"), pursuant to which Arcadian has agreed to provide (or arrange for
the provision of) certain of the manufacturing support systems services, as set
forth in the 1993 Manufacturing Support Agreement, to BOC pursuant to the terms
of the 1996 Manufacturing Support Agreement, in order to assure the continued
operation of the CO(2) Plant on and after the date hereof; and
WHEREAS, Arcadian and BP Chemicals wish to amend the 1993 Manufacturing
Support Agreement in light of the 1996 Asset Purchase Agreement and the 1996
Manufacturing Support Agreement;
NOW, THEREFORE, Arcadian and BP Chemicals hereby agree to amend the
1993 Manufacturing Support Agreement as follows:
1. Exhibit "A" to the 1993 Manufacturing Support Agreement is hereby
amended to specifically include in the manufacturing support systems services
used, consumed or employed in or in connection with the operation of the CO(2)
Plant or the related business of manufacturing and selling liquid and solid
carbon dioxide at the CO(2) Plant those support services set forth on Appendix
"I" to this First Amendment (collectively, the "CO(2) Plant Support Services").
(In any instance in which a manufacturing support system service is described in
Appendix "I" hereto in a manner different than the manner in which it was
described in Exhibit "A" to the 1993 Manufacturing Support Agreement, the
description of such service in said Exhibit "A" shall be
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amended correspondingly to the extent necessary to cover the delivery of such
service to the CO(2) Plant only.)
2. From and after the date of this First Amendment, subject to Section
3 hereof, BP Chemicals shall cease to provide to Arcadian the CO(2) Plant
Services; provided, however, that there shall be no reduction in the cost or
capital expenditure sharing by Arcadian and BP Chemicals or other compensation
or reimbursable expenses payable by Arcadian to BP Chemicals pursuant to the
terms of the 1993 Manufacturing Support Agreement as a result of the application
of the provisions of this Section 2.
3. From and after the date of this Agreement and until December 31,
2011 or the date on which Arcadian shall notify BP Chemicals in writing to
resume providing the CO(2) Plant Support Services directly to Arcadian,
whichever of such dates shall be the first to occur, BP Chemicals, acting as the
agent and for the account of Arcadian, shall provide (or cause to be provided)
directly to BOC the CO(2) Plant Support Services; provided, however, that BP
Chemicals shall not be entitled to receive payment of any additional
compensation or reimbursable expenses from Arcadian or BOC in consideration of
or as a result of the application of the provisions of this Section 3, nor shall
there be any reduction in the cost or capital expenditure sharing by Arcadian
and BP Chemicals or other compensation or reimbursable expenses payable by
Arcadian to BP Chemicals pursuant to the terms of the 1993 Manufacturing Support
Agreement as a result of the application of this Section 3. BP Chemicals shall
provide (and shall cause any Secondary Provider to provide) the CO(2) Plant
Services to BOC in accordance with the Reasonable Operator standard set forth in
the 1993 Manufacturing Support Agreement.
4. Included among the CO(2) Plant Support Services are sanitary sewage
disposal services. In providing such services, BP Chemicals shall be deemed to
be a third-party beneficiary of all rights afforded to Arcadian under Appendix
II to Exhibit "B" to the 1996 Manufacturing Support Agreement.
5. Except as expressly modified, amended and superseded by this First
Amendment, the terms and provisions of the 1993 Manufacturing Support Agreement
shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment in duplicate by their duly authorized representatives as of the date
first above set forth above.
BP Chemicals, Inc. Arcadian Ohio, L.P.
By: /s/ By: Arcadian Corporation,
---------------------------- General Partner
Title: V.P.
------------------------- By: /s/
-----------------------
X.X. Xxxxxxxx
President
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APPENDIX "I" TO FIRST AMENDMENT
TO MANUFACTURING SUPPORT AGREEMENT
Sanitary Sewage Disposal
BP will timely provide (or arrange for the timely provision of) all sanitary
sewage disposal services required by BOC for the account of Arcadian or BOC in
accordance with the terms and subject to the conditions set forth in Appendix II
to Exhibit "B" to the 1996 Manufacturing Support Agreement.
Steam
BP will timely provide (or arrange for the timely provision of) a continuously
available stream of 50 to 75 psi steam as BOC may require for use in the CO(2)
Plant.
City (Potable) Well Water
BP will timely provide (or arrange for the timely provision of) all city
(potable) and/or well water BOC may require for use in the CO(2) Plant at any
time.
BOC will install, on or before December 1, 1996, a meter to measure the quantity
of the city (potable) and/or well water furnished hereunder at BOC's expense,
which expense is preliminarily estimated to be $5,000.
Electricity*
BP will timely provide (or arrange for the timely provision of) all electricity
as BOC may require for use in the CO(2) Plant and the security gate described in
the Manufacturing Plant Ground Sublease Agreement ("Sublease") between Arcadian
and BOC, in accordance with the terms and subject to the conditions set forth
therein. In providing such electricity, BP shall continue to use the same
electrical substation that is presently being utilized by BP to provide
electricity to the CO(2) Plant, provided that, after completion of the planned
expansion of the Nitrogen Plant, Arcadian may then direct BP to discontinue so
utilizing such substation for said purpose.
Existing Security Gate
BP will provide (or arrange for the provision of) the existing security gate and
security guards employed at such security gate for BOC's non-exclusive use until
such date as BOC installs and equips a new security gate for BOC's exclusive
use, which date shall be no later than April 7, 1997. (BP shall have no
responsibility for the new security gate or for any costs or expenses, capital
or otherwise, incurred by BOC in connection therewith.)
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Rail Switching
BP will provide (or arrange for the timely provision of) all rail switching
support services as BOC may require for railcars serving the CO(2) Plant. The
switching services provided or arranged by BP shall be sufficient to allow rail
service to the CO(2) Plant, Monday through Saturday, from all railroad companies
serving the CO(2) Plant. BOC shall communicate to the BP Chemicals distribution
office at the BP Chemicals Plant the number and placement of railcars requiring
switching and the railroad companies to which such railcars should be delivered
each day.
