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EXHIBIT 3.2
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CHEVRON XXXXXXXX CHEMICAL COMPANY LLC
This Amendment No. 1 (this "Amendment") to the Amended and Restated Limited
Liability Agreement (the "LLC Agreement") of Chevron Xxxxxxxx Chemical Company
LLC (the "Company") dated as of July 1, 2000 is made and entered into as of
July 1, 2000 by and between Chevron Corporation, a Delaware corporation
("Chevron"), Xxxxxxxx Petroleum Company, a Delaware corporation, Chevron U.S.A.
Inc., a Pennsylvania corporation ("CUSA"), Drilling Specialities Co., a Delaware
corporation, WesTTex 66 Pipeline Co., a Delaware corporation, and Xxxxxxxx
Petroleum International Corporation, a Delaware corporation. Defined terms used
in this Amendment but not defined herein shall have the same meaning provided
for in the LLC Agreement prior to its amendment by this Amendment.
WHEREAS, the Members and Chevron are parties to the LLC Agreement;
WHEREAS, at the Closing CUSA, Chevron Overseas Petroleum Inc., a Delaware
corporation ("COPI") and Chevron Pipe Line Company, a Delaware corporation
("CPL"), contributed C Chem (as defined in the Contribution Agreement) to the
Company as provided in Section 2.2 of the Contribution Agreement, and each
received a Membership Interest in exchange for such contribution;
WHEREAS, immediately after Closing, COPI and CPL transferred their
Membership Interests to CUSA as permitted by Section 10.7 of the LLC Agreement
and in accordance with Section 10.2 of the LLC Agreement;
WHEREAS, the Members made certain reimbursable capital expenditures with
respect to property contributed by them to the Company, and
WHEREAS, pursuant to Section 16.1(a) of the LLC Agreement, (i) the Members
desire that the LLC Agreement be amended to reflect the transfer by COPI and CPL
of their Membership Interest to CUSA, and (ii) CUSA and the Class P Members
desire to amend the LLC Agreement regarding such reimbursable capital
expenditures.
NOW, THEREFORE, CUSA and the Class P Members hereby agree as follows:
1. Amendments to Reflect Transfer of COPI's and CPL's Membership
Interests.
1.1 Amendment of Article 1. The LLC Agreement is hereby amended by
deleting CPL and COPI from the definition of Class C Member.
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1.2 Amendment of Schedule 3. Schedule 3 to the LLC Agreement is
hereby deleted in its entirety and replaced with the Schedule 3 attached to
this Amendment.
2. Amendment to Section 9.2. The LLC Agreement is hereby amended by
inserting a new subsection (h) to Section 9.2 to read in its entirety as
follows:
(h) Formation and Reimbursement for Capital Expenditures. (i) The
Members intend that the contributions of P Chem (as defined in the
Contribution Agreement) and C Chem (as defined in the Contribution
Agreement) constitute a nonrecognition transaction pursuant to Section
721(a) of the Code, and the Members shall and shall cause the Company to
report and otherwise treat the transfers of P Chem and C Chem to the
Company as solely a nonrecognition transaction pursuant to Section 721(a)
of the Code on all relevant tax returns and reports. Each Class P Member
states that it has made capital expenditures that are eligible for
reimbursement pursuant to Regulations Section 1.707-4(d) ("Reimbursable
Capital Expenditures") with respect to P Chem in an amount that is not less
than the amount set forth opposite its name on Schedule 5 attached hereto,
and the Class C Member states that it has made Reimbursable Capital
Expenditures with respect to C Chem in an amount that is not less than the
amount set forth opposite its name on Schedule 5 attached hereto.
(ii) If, absent this Section 9.2(h), any distribution to a Class P
Member would cause any of the P Chem property transferred by that Member to
the Company pursuant to the Contribution Agreement to be treated as a sale
of such property, or if, absent this Section 9.2(h), any distribution to a
Class C Member would cause any of the C Chem property transferred by that
Member to the Company pursuant to the Contribution Agreement to be treated
as a sale of such property, then, to the extent permitted by Regulations
Section 1.707-4(d), the Company and the Members shall treat such
distribution as a reimbursement of Reimbursable Capital expenditures made
by such Member (up to the amount thereof as set forth on Schedule 5 less
any portion of such amount that has been reimbursed by any prior
distribution treated as a reimbursement of Reimbursable Capital
Expenditures under this Section 9.2(h)).
(iii) Without limiting the generality of the foregoing Section
9.2(h)(ii), if, absent this Section 9.2(h), any distribution to a Member
would cause any of the property transferred by that Member to the Company
pursuant to the Contribution Agreement to be treated as a sale of such
property, then, to the extent permitted by Regulations Section 1.707-4(d),
the Members and the Company shall treat (i) any excess of any of the
distribution to a Class C Member of the Initial Financing required by
Section 9.2(f) of the LLC Agreement and Section 6.16 of the Contribution
Agreement and any distribution in respect of Actual Contributed Cash and/or
Working Capital Difference required by Section 3.3 of the Contribution
Agreement (collectively, the "Special Distribution") over the Class C
Member's allocable share" (within
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the meaning of Regulations Section 1.707-5(b)) of the Interim Financing or
other borrowing of the Company, the proceeds of which are allocable (within
the meaning of Regulations Section 1.707-5(b) and Notice 89-35, 1989-1 C.B.
675) to such Special Distribution, as reimbursements of Reimbursable
Capital Expenditures incurred by such Class C Member (up to the amount
thereof as set forth on Schedule 5 less any portion of such amount that has
been reimbursed by any prior distribution treated as a reimbursement of
Reimbursable Capital Expenditures under this Section 9.2(h)), and (ii) any
excess of the Special Distribution to a Class P Member over the Class P
Member's "allocable share" (within the meaning of Regulations Section
1.707-5(b)) of the Interim Financing or other borrowing of the Company, the
proceeds of which are allocable (within the meaning of Regulations Section
1.707-5(b) and Notice 89-35, 1989-1 C.B. 675) to such Special Distribution,
as reimbursements of Reimbursable Capital Expenditures incurred by such
Class P Member (up to the amount thereof as set forth on Section 5 less any
portion of such amount that has been reimbursed by any prior distribution
treated as a reimbursement of Reimbursable Capital Expenditures under this
Section 9.2(h)).
2. Addition of New Schedule 5. The LLC Agreement is hereby amended by
adding thereto the new Schedule 5 attached to this Amendment.
3. Governing Law. This Agreement shall be governed by and construed under
the substantive laws of the State of Delaware, without regard to Delaware
choice of law provisions.
4. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument, and shall become effective when there exists copies
hereof which, when taken together, bear the authorized signatures of each of the
parties hereto. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Amendment.
IN WITNESS WHEREOF, the undersigned hereby execute this Amendment this 20th
day of December 2000 effective as of the date first set forth above.
CHEVRON U.S.A. INC.
By /s/ XXXXXXXXX XXXXXX
--------------------------------------
Name Xxxxxxxxx Xxxxxx
Title Assistant Secretary
(SIGNATURES CONTINUED ON THE NEXT PAGE.)
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CHEVRON CORPORATION
By /s/ H. P. XXXXXX
------------------------------------
Name H. P. Xxxxxx
Title Assistant Secretary
Transferring Member:
CHEVRON OVERSEAS PETROLEUM INC.
By /s/ X. XXXXXX
------------------------------------
Name X. Xxxxxx
Title Assistant Secretary
Transferring Member:
CHEVRON PIPE LINE COMPANY
By /s/ X. X. XXXXX
------------------------------------
Name X. X. Xxxxx
Title Assistant Secretary
XXXXXXXX PETROLEUM COMPANY
By /s/ XXXX X. XXXX
------------------------------------
Name Xxxx X. Xxxx
Title Senior Vice President Planning
and Strategic Transactions
(Signatures continued on the next page)
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DRILLING SPECIALTIES CO.
By /s/ X. X. XXXXXX
------------------------------------
Name X. X. Xxxxxx
Title Vice President and
Assistant Treasurer
WESTTEX 66 PIPELINE CO.
By /s/ X. X. XXXX
------------------------------------
Name X. X. Xxxx
Title Vice President and Treasurer
XXXXXXXX PETROLEUM INTERNATIONAL
CORPORATION
By /s/ XXXXX X. XXXXXX
------------------------------------
Name Xxxxx X. Xxxxxx
Title Vice President and Treasurer
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SCHEDULE 3
NAMES, CLASS OF MEMBERSHIP INTEREST, CAPITAL
CONTRIBUTIONS AND PERCENTAGE INTERESTS OF MEMBERS
Class of
Membership Date of Capital Percentage
Name of Members Interest Contribution Account Interest
Chevron U.S.A. Inc. C Closing $(1) 50%
--
Total Class C Member 50%
==
Xxxxxxxx Petroleum Company P Closing $ %
Drilling Specialties Co. P Closing $ %
XxxXXxx 00 Xxxxxxxx Xx. P Closing $ %
Xxxxxxxx Petroleum International
Corporation P Closing $ %
--
Total Class P Members 50%
==
Total All Members $ 100.0%
=====
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(1) Chevron U.S.A. Inc. is the transferee of the Membership Interests of Chevron
Overseas Petroleum Inc. and Chevron Pipe Line Company and its capital
account as set forth on this Schedule 3 includes contributions made at
Closing by Chevron Overseas Petroleum Inc. and Chevron Pipe Line
Company.
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SCHEDULE 5
REIMBURSEABLE CAPITAL EXPENDITURES
NAME OF MEMBERS REIMBURSABLE CAPITAL EXPENDITURE
Chevron U.S.A. Inc. $310 Million
Xxxxxxxx Petroleum Company $200 Million
Drilling Specialties Co. $1.2 Million
WesTTex 66 Pipeline Co. $5 Million
Xxxxxxxx Petroleum International $47 Million
Corporation
