EXHIBIT 10.30(a)
FIRST AMENDMENT
TO
AMENDED AND RESTATED MASTER TRANSACTION AGREEMENT
This First Amendment to the Amended and Restated Master Transaction Agreement
(this "Amendment") is made as of December 18, 2000 by and between ▇▇▇▇▇ ▇▇, a
German corporation ("▇▇▇▇▇ ▇▇"), Bayer Corporation, an Indiana corporation
("Bayer Corp." and together with ▇▇▇▇▇ ▇▇, "▇▇▇▇▇"), and Lyondell Chemical
Company, a Delaware corporation ("Lyondell").
RECITALS
(A) The parties (i) entered into the Master Transaction Agreement dated as of
November 16, 1999 for the formation of a U.S. propylene oxide joint venture
and the sale of Lyondell's worldwide polyols business to Bayer and (ii)
subsequently entered into the Amended and Restated Master Transaction
Agreement dated as of March 31, 2000 in connection with the formation of
the PO Joint Venture and the closing of the Asset Purchase Agreement (such
agreement as amended, the "MTA");
(B) Lyondell and ▇▇▇▇▇ ▇▇, through their respective subsidiaries, have agreed
to jointly pursue the development and operation of a new PO/SM plant
("PO-11") at Maasvlakte, The Netherlands;
(C) In connection with the agreements between the parties concerning PO-11, the
parties have agreed that Bayer shall receive certain expanded technology
rights for PO-11 and future joint ventures between Lyondell and Bayer; and
(D) The parties desire to further amend the MTA 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:
1. Effectiveness of Amendment; Defined Terms.
Except as amended by this Amendment, all the terms and provisions of the
MTA shall remain in full force and effect among the parties thereto.
Capitalized terms used and not otherwise defined herein shall have the
meanings given such terms in the MTA.
2. Amendment to Section 11.04.
The following amendments are hereby made to Section 11.04 of the MTA:
(a) The third sentence in Section 11.04(b)(ii) is deleted in its entirety
and replaced by the following:
Bayer shall pay a share of Lyondell's actual documented costs of
planning, design and construction of the New Plant (A) on a timetable
which matches Lyondell's capital outlays for such New Plant and (B)
based upon the ratio of (1) the New Capacity Equity Amount to (2) the
total number of pounds of rated PO capacity which is projected by
Lyondell to be produced by the New Plant. Bayer shall pay a
technology licensing fee or royalty charge to be negotiated by the
parties subject to the following limitations: If the New Plant
produces SM as a Co-Product, Bayer shall not pay any technology
licensing fee or royalty charge with respect to any PO/SM technology
developed by the Lyondell Group, unless the Bayer Group fails to pay
its full 50% share of any Existing PO/Co-Products R&D Budget (i.e.,
without being limited by the Bayer Budget Cap) for the Year 2001 or
any year thereafter. If the Bayer Group pays a share of the Existing
PO/Co-Products R&D Budget as limited by the Bayer Budget Cap for any
such year, then the parties shall negotiate an appropriate technology
licensing fee or royalty charge, taking into account the cumulative
Bayer Group's Existing PO/Co-Products R&D Contributions compared to a
50% share of the cumulative amount of the Existing PO/Co-Products R&D
Budgets for the appropriate period beginning with the Year 2001. If
the New Plant produces TBA as a Co-Product (with Bayer's agreement in
accordance with the first sentence of this Section 11.04(b)(ii)), then
Lyondell may charge Bayer a technology licensing fee or royalty charge
for process improvements that were not commercialized in any of the
Existing Plants as of the Effective Date.
(b) Section 11.04(b)(iv) is amended and restated as follows:
Lyondell and Bayer shall negotiate in good faith to determine the
terms of any license of any technology associated with such New
Capacity Equity Interest, including provisions for the protection and
preservation of the going concern value of Lyondell's PO and PO
derivative businesses. Bayer shall not pay any additional technology
licensing fee or royalty charge except as permitted under
Section 11.04(b)(ii).
(c) The second sentence in Section 11.04(c)(ii) is deleted and replaced
by the following:
Under the Existing Capacity Equity Agreement, (A) Lyondell shall sell
Bayer the right (the "Existing Capacity Equity Interest") to take the
Existing Capacity Amount for an initial capital cost equivalent to the
planning, design and construction cost associated with Lyondell's then
most recent commercially proven technology, (B) delivery of the
Existing Capacity Amount shall take effect on a timetable that would
have existed if a New Plant was built under the terms of Section
11.04(b) above unless earlier delivery is mutually agreed by the
parties and (C) Bayer shall receive long-term rights in the Existing
Capacity Amount
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produced at the plant(s) in which Bayer is given capacity rights
subject to ratable curtailment. The Existing Capacity Amount shall
include associated Co-Product capacity unless Lyondell determines that
Bayer will not participate in Co-Product. Bayer shall pay a technology
licensing fee or royalty charge to be negotiated by the parties
subject to the limitations set forth in Section 11.04(b)(ii).
(d) The first sentence in Section 11.04(c)(iii) is amended and restated as
follows:
Lyondell and Bayer shall negotiate in good faith to determine the
terms of any license of any technology associated with such Existing
Capacity Equity Interest, including provisions for the protection and
preservation of the going concern value of Lyondell's PO and PO
derivative businesses. Bayer shall not pay any additional technology
licensing fee or royalty charge except as permitted under
Section 11.04(b)(ii).
(e) Section 11.04(d)(iii) is amended by deleting the following at the
end of such Section:
"up to the amount of PO that Bayer would have received had it
concluded the transaction under discussion between the parties under
this Section 11.04 at the time of negotiations."
(f) For purposes of this Section 11.04 and Section 11.06, the following
terms shall have the following meanings:
"Existing PO/Co-Products R&D Contributions" means the sum of (i) the
Bayer Tech LP Monthly Technology Budget Payments and (ii) the ▇▇▇▇▇ ▇▇
Annual Technology Payment.
"Bayer Tech LP Monthly Technology Budget Payments" means the monthly
amount payable by Bayer Tech LP to contribute to the Existing PO/Co-
Products R&D Budget under the terms of the Technology Partnership
Agreement (as amended).
"▇▇▇▇▇ ▇▇ Annual Technology Payment" means 25% of the Existing PO/Co-
Products R&D Budget, provided that such annual payment shall not
exceed 50% of the Bayer Budget Cap without Bayer's prior written
consent.
"Existing PO/Co-Products R&D Budget" means the annual research and
development expenses for process development (including related
support) for the Lyondell Group directed at the PO/SM and PO/TBA
processes, excluding any expenses for Lyondell Group research and
development projects relating exclusively to the TBA Co-Product, such
as, for example, isooctane research and development projects.
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"Bayer Budget Cap" means $2.0 million (as such threshold shall be
adjusted by agreement of the parties hereto) as of January 1 following
each fifth anniversary of the Closing Date taking into account
inflation and other factors).
3. Amendment to Section 11.06.
Section 11.06(c) is amended and restated as follows:
If the Non-Building Party elects to participate in such New PO Plant and
the parties reach agreement on the material terms for the New PO Plant and
their respective participation, then (i) each party shall be obligated to
off-take (or provide for the off-take of) any Co-Product produced in such
New PO Plant in an amount proportional to its PO capacity in such New PO
Plant and (ii) each party shall pay a proportionate amount of the costs of
planning, design and construction of such New PO Plant. The parties shall
negotiate in good faith to determine the technology contributed to such New
PO Plant by either party and the terms of any technology licensing fee or
royalty charge for any technology contributed or licensed in connection
with such New PO Plant by either party. The following two sentences apply
to technology contributed or licensed by Lyondell. If the New Plant
produces SM as a co-product, Bayer shall not pay a technology licensing fee
or royalty charge to Lyondell with respect to PO/SM technology developed by
the Lyondell Group, unless the Bayer Group fails to pay its full 50% share
of any Existing PO/Co-Products R&D Budget (i.e., without being limited by
the Bayer Budget Cap) for the Year 2001 or any year thereafter. If the
Bayer Group pays a share of Existing PO/Co-Products R&D Budgets as limited
by the Bayer Budget Cap for any such year, then the parties shall negotiate
an appropriate technology licensing fee or royalty charge, taking into
account the cumulative Bayer Group's Existing PO/Co-Products R&D
Contributions compared to a 50% share of the cumulative amount of the
Existing PO/Co-Products R&D Budgets for the appropriate period beginning
with the Year 2001. If the New Plant produces TBA as a Co-Product, then
Lyondell may charge Bayer a technology licensing fee or royalty charge for
process improvements that were not commercialized in any of the Existing
Plants as of the Effective Date.
4. Correction to Section 11.11.
The second sentence of Section 11.11(d) is amended and restated as follows:
"If the parties fail to reach agreement within the time period necessary to
enable the Offering Party to proceed with the New PO Opportunity on its
own, then the Offering Parent may proceed with the New PO Opportunity
without the participation of the Offeree Parent and (if Bayer is the
Offeree Parent) Bayer shall be released from its exclusive purchase
obligations under the Market Based Supply Agreement up to the amount of PO
which Bayer would have acquired in connection with such New PO
Opportunity."
5. Bayer Additional Technology Payment.
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A new Section 11.13 is added to Article XI as follows:
SECTION 11.13 Bayer Additional Technology Payments.
(a) In consideration of the amendments to Sections 11.04 and 11.06
contained in this Amendment, and in partial consideration for the
licensing of the PO/SM technology of the Lyondell Group for PO-11,
Bayer shall pay or cause to be paid:
(i) US $4,400,000 in immediately available funds on the PO-11
Signing Date. No further technology licensing fee or royalty
charge shall be payable in respect of PO-11 during the term of
the PO-11 Partnership Agreement, provided the Bayer Group pays
its full 50% share of each Existing PO/Co-Products R&D Budget
(i.e., without being limited by the Bayer Budget Cap) for the
Year 2001 and every year thereafter. If the Bayer Group does
not pay its full 50% share of any Existing PO/Co-Products R&D
Budget (i.e., without being limited by the Bayer Budget Cap),
then notwithstanding the provisions of the PO-11 Partnership
Agreement and the PO-11 Operating Agreement, Bayer and Lyondell
shall agree to an appropriate technology licensing fee or
royalty charge in respect of any Capital Project which
implements process development research at PO-11. Such
technology licensing fee or royalty charge shall take into
account the cumulative Existing PO/Co-Products R&D
Contributions made by the Bayer Group for the Year 2001 and
every year thereafter compared to 50% of the cumulative amount
of the Existing PO/Co-Products R&D Budgets over the same
period.
(ii) A one-time amount equal to US $1,500,000, plus interest at
LIBOR accruing beginning as of the PO-11 Signing Date,
compounded quarterly, on the earlier of the next to occur of
(i) the date of signing by both parties (or their designated
Affiliates) of definitive documents for a PO/SM plant employing
technology of Lyondell or its Affiliates that is constructed
following the date hereof (excluding for this purpose PO-11) in
which each of Lyondell and Bayer (or their designated
Affiliates) have an equity interest or capacity right or (ii)
Bayer obtaining an Existing Capacity Equity Interest pursuant
to Section 11.04(c) of this Agreement.
(iii) The ▇▇▇▇▇ ▇▇ Annual Technology Payment in immediately available
funds on July 1 of each year beginning in 2001.
(b) For purposes of this Section 11.13, the following definitions shall
apply:
"PO-11 Operating Agreement" means the operating agreement between
Lyondell Chemical Nederland, Ltd. and Lyondell Bayer Manufacturing
Maasvlakte VOF dated as of the PO-11 Signing Date.
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"PO-11 Partnership Agreement" means the General Partnership Agreement
of Lyondell Bayer Manufacturing Maasvlakte VOF entered into between
Bayer Polyurethanes, B.V. and Lyondell PO-11 C.V., dated as of the
PO-11 Signing Date.
"PO-11 Signing Date" means 18 December 2000.
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IN WITNESS WHEREOF, the Parties have executed this Amendment as of the
date first listed above.
BAYER CORPORATION LYONDELL CHEMICAL COMPANY
By: /s/ ▇▇▇▇-▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇-▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Head of BG PU Title: Director, PO Venture
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▇▇▇▇▇ ▇▇
By: /s/ ▇▇▇▇-▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇-▇. ▇▇▇▇▇▇
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Title: Head of BG PU
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: Legal Counsel
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