Exhibit 10.30(a)
FIRST AMENDMENT
TO
AMENDED AND RESTATED LIMITED
PARTNERSHIP AGREEMENT OF PO JV, LP
This First Amendment to the Amended and Restated Limited Partnership
Agreement of PO JV, LP (this "Amendment") is made as of April 30, 2002 by and
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between PO Offtake LP, a Delaware limited partnership ("Lyondell GP", in its
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capacity as general partner of the Partnership, and "Lyondell LP", in its
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capacity as a limited partner of the Partnership), and BAYPO Limited
Partnership, a Delaware limited partnership ("Xxxxx XX").
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RECITALS
(A) Pursuant to an Amended and Restated Master Transaction
Agreement dated as of March 31, 2000 (the "Master Transaction Agreement") by and
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among Lyondell Chemical Company ("Lyondell"), Xxxxx XX and Bayer Corporation
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(together, "Bayer"), the Parties have heretofore entered into the Amended and
Restated Limited Partnership Agreement of PO JV, LP dated as of March 31, 2000
(the "Partnership Agreement") to establish a joint venture in the form of a
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Delaware limited partnership to engage in the production of PO and related
co-products in the United States;
(B) In order to resolve a number of disputes that have arisen
between Bayer and Lyondell in connection with the transactions contemplated by
the Master Transaction Agreement, Bayer and Lyondell have entered into a Term
Sheet dated as of March 8, 2002 (the "Term Sheet"), which contemplates that
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Bayer and Lyondell will enter into definitive agreements to formalize with
specificity and implement the intent of the Term Sheet;
(C) As contemplated by the Overarching Agreement dated as of April
30, 2002 and the Term Sheet, the Parties desire to further amend the Partnership
Agreement on the terms set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of the Parties, it is hereby agreed as follows:
Section 1. Defined Terms. Capitalized terms used and not
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otherwise defined herein shall have the meanings given such terms in the
Partnership Agreement.
Section 2. G&A Fee Adjustment. Section 2.3(d)(vii) of the
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Partnership Agreement provides that Xxxxx XX shall pay a monthly fee for
stipulated allocated general services and administrative charges as a component
of its Operating Cost Partner Invoice payable to the Partnership. For purposes
of determining the Bayer Monthly Stipulated G&A Allocation pursuant to Section
2.3(d)(vii) and Schedule 2.3 of the Partnership Agreement, the Parties hereby
agree as follows:
(a) The sum of the Bayer Monthly Stipulated G&A
Allocation payments for the year 2002 is budgeted to
be $14.558 million (including the actual 2002 annual
adjustment for changes in the G&A Escalator).
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(b) The Bayer Monthly Stipulated G&A Allocation payment
shall be reduced by $166,666.66 per month each month
(aggregate $2 million (US $2,000,000) reduction per
year) for the year 2002 and for each year thereafter
until December 31, 2011. Xxxxx XX will receive a
cumulative adjustment for this reduction in the Bayer
Monthly Stipulated G&A Allocation in respect of the
portion of 2002 through the billing date following
the date hereof in the Operator Cost Partner Invoice
that next follows the date hereof.
(c) For the five-year period beginning January 1, 2003
and ending December 31, 2007 (the "Escalation Waiver
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Period"), Lyondell GP, as general partner on behalf
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of the Partnership, agrees to waive any right to any
further increase in the Bayer Monthly Stipulated G&A
Allocation payments payable subsequent to 2002
resulting from the annual adjustment for changes in
the G&A Escalator as contemplated by paragraph 2 of
Schedule 2.3 of the Partnership Agreement.
Notwithstanding the foregoing, the Bayer Monthly
Stipulated G&A Allocation from January 1, 2003 until
December 31, 2007 shall increase due to Bayer's
volume share increase in 2003 and 2004 as originally
set forth in the definition of "Bayer Monthly
Stipulated G&A Allocation" and as escalated through
2002. For the Escalation Waiver Period, Xxxxx XX
does not waive any right to any decrease in the
Bayer Monthly Stipulated G&A Allocation resulting
from any decrease in the total personnel costs
pursuant to paragraph 2 of Schedule 2.3 of the
Partnership Agreement.
(d) Beginning January 1, 2008 and thereafter for the
remainder of the Term of the Partnership Agreement,
the annual adjustment to the Bayer Monthly
Stipulated G&A Allocation payments for changes in
the G&A Escalator shall be reinstated, and such
reinstatement shall (1) include the cumulative
increases to the G&A Escalator from January 1, 2002,
as if such increases had not been waived pursuant to
paragraph (c) above, and (2) be determined based on
the Bayer Monthly Stipulated G&A Allocation payments
calculation without the monthly reduction pursuant
to paragraph (b) above. An example of the
adjustments and reinstatement to the Bayer Monthly
Stipulated G&A Allocation contemplated by this
Section 2 is set forth in Exhibit A hereto. The
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Parties will update Exhibit A by March 31 of each
year of the Escalation Waiver Period to reflect
actual amounts.
(e) For avoidance of doubt, the Bayer Monthly Stipulated
G&A Allocation payments, as calculated in accordance
with this Section 2, shall reflect any G&A cost
change resulting from a change by mutual agreement
in the composition of the market reference basket of
administrative positions pursuant to paragraph 1 of
Schedule 2.3 of the Partnership Agreement every five
years, beginning with calendar year 2006. Any change
to the G&A Escalator resulting from a change in the
composition of the market reference basket shall be
waived for the duration of the Escalation Waiver
Period according to paragraphs (c) and (d) of this
Section 2.
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Section 3. Xxxxx XX Fixed Costs Reduction.
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(a) As provided in Section 2.3(d)(i) and Section 8.1(b)
of the Partnership Agreement, as a component of its
Operating Cost Partner Invoice Xxxxx XX pays the
portion of the PO Share of the budgeted Fixed Costs
for the Existing Plant Complexes allocated to the
Xxxxx XX Partnership Interest, as determined in
accordance with Exhibit C of the Operating
Agreement. For purposes of determining Bayer LP's
portion of the PO Share of such Fixed Costs, the
Parties hereby agree that for 2002 and 2003 Bayer
LP's portion shall be reduced by $3 million (US
$3,000,000) from what it otherwise would be absent
such adjustment. Such reductions will be in the form
of rebates to the January 2003 (as to the 2002
reduction) and January 2004 (as to the 2003
reduction) Fixed Cost component of the Operating
Cost Partner Invoice delivered to Xxxxx XX pursuant
to Section 2.3(c) of the Partnership Agreement. The
reductions pursuant to this Section 3 are
independent of any adjustments resulting from the
biannual audit of Operating Services Costs of the
Partnership, as provided for in paragraph IV of
Schedule C to the Operating Agreement.
(b) Concurrently with the execution of this Amendment,
Lyondell and the Partnership will enter into a Second
Amendment to PO Operating and Services Agreement (the
"Operating Agreement Amendment") to be dated as of
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even date herewith to implement the provisions of
this Section 3. A copy of the Operating Agreement
Amendment is attached hereto as Exhibit B.
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Section 4. Accommodation Fee. The Parties hereby agree that the
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following language shall be inserted after the final sentence of Section 9.6 of
the Partnership Agreement:
"Affiliates of Lyondell and Bayer have entered into a Toll Processing
and Product Sales Agreement (Propylene Glycols) (the "PG Agreement"),
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a Toll Processing Agreement (Butanediol) (the "BDO Agreement"), a
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Sales Agreement (Propylene Oxide) (the "PO Sales Agreement") and an
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Asian/U.S. Exchange Contract (Propylene Oxide) (the "Asian Swap
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Agreement"), each dated as of April 30, 2002. For purposes of
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calculating the Accommodation Fee pursuant to this Section 9.6 and
Schedule 9.6 of the Partnership Agreement, the Accommodation Fee shall
not apply with respect to any pounds of PO Product (i) tolled by
Lyondell for Bayer or its Affiliate pursuant to the PG Agreement or
BDO Agreement, (ii) taken by Bayer and subsequently purchased by
Lyondell or its Affiliate pursuant to the PO Sales Agreement or (iii)
exchanged with Lyondell pursuant to the Asian Swap Agreement (since
these are PO Product volumes being used for Indentified Polyols)."
Section 5. Effectiveness of Partnership Agreement; Entire
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Agreement. Except as amended by this Amendment, all terms and conditions of the
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Partnership Agreement shall remain in full force and effect among the Parties
thereto. The Partnership Agreement, as amended by this Amendment, when read
together with the PO Operating and Services Agreement, as amended, contains the
entire agreement among the Parties with respect to the
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subject matter thereof, and there are no other agreements, understandings,
representations or warranties between the Parties with respect to the subject
matter thereof. Without limitation, the Term Sheet will have no further force
and effect with respect to the subject matter of this Amendment.
Section 6. Counterparts. This Amendment may be executed in
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separate counterparts, each of which shall constitute an original. All
signatures need not be on the same counterpart.
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IN WITNESS WHEREOF, the Parties have executed this Amendment
effective as of the date first listed above.
GENERAL PARTNER:
PO OFFTAKE, LP, as general partner
By: Lyondell POJVGP, LLC, its general partner
By: /s/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx
Title: President and Treasurer
Date: April 30, 2002
LIMITED PARTNERS:
PO OFFTAKE, LP, as limited partner
By: Lyondell POJVGP, LLC, its general partner
By: /s/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx
Title: President and Treasurer
Date April 30, 2002
BAYPO LIMITED PARTNERSHIP, as limited partner
By: BAYPO I LLC, its general partner
Name: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: President
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Date: April 30, 2002
