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Dutch General Partnership Agreement Dated 12/18/2000

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Sectors: Chemicals
Governing Law: The Netherlands
Effective Date: December 18, 2000
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DATED 18 DECEMBER 2000


____________________________________________________________________


GENERAL PARTNERSHIP AGREEMENT


____________________________________________________________________


BETWEEN


BAYER POLYURETHANES B.V.


AND


LYONDELL PO-11 C.V.


TABLE OF CONTENTS


ARTICLE 1 DEFINITIONS................................................... 1


ARTICLE 2 FORMATION OF PARTNERSHIP...................................... 2
2.1 Formation of the Partnership.................................. 2
2.2 Partnership Percentages....................................... 2


ARTICLE 3 NAME, SEAT, TRADE REGISTER, MANAGING PARTNER.................. 2
3.1 Name of the Partnership....................................... 2
3.2 Seat of the Partnership....................................... 2
3.3 Registration.................................................. 2
3.4 Managing Partner.............................................. 2
3.5 Solely a Manufacturing Joint Venture.......................... 2


ARTICLE 4 PURPOSE AND BUSINESS OF THE PARTNERSHIP....................... 2
4.1 Business of the Partnership................................... 2
4.2 Activities.................................................... 3


ARTICLE 5 TERM.......................................................... 3
5.1 Initial Contract Term......................................... 3
5.2 Extension of the Term......................................... 3


ARTICLE 6 CAPITAL CONTRIBUTIONS......................................... 3
6.1 General....................................................... 3
6.2 Working Capital............................................... 6


ARTICLE 7 ACCOUNTS IN THE NAME OF THE PARTNERS.......................... 7
7.1 Capital Accounts.............................................. 7
7.2 Current Accounts.............................................. 8


ARTICLE 8 MANAGEMENT.................................................... 8
8.1 General....................................................... 8
8.2 Operating Agreement........................................... 12


ARTICLE 9 OFFTAKE RIGHTS, MONTHLY PRODUCTION AND LIFTING PLANNING,
SPARE CAPACITY, DELIVERY OF PRODUCT, SHARED STORAGE
FACILITIES.................................................... 13
9.1 Offtake Rights of the Partners................................ 13
9.2 Monthly Production and Lifting Nominations.................... 13
9.3 Cost Allocations.............................................. 14
9.4 Bayer Spare Capacity.......................................... 15
9.5 Production Loss............................................... 17
9.6 Product Specifications........................................ 17
9.7 Delivery and Testing of Products.............................. 17
9.8 Risk of loss of Raw Materials................................. 17
9.9 Shared Storage Facilities..................................... 18


ARTICLE 10 PAYMENT OF OPERATING COSTS.................................... 19


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10.1 Invoicing for Operating Costs................................. 19 10.2 Fixed Costs................................................... 19 10.3 Variable Costs................................................ 19 10.4 Depreciation.................................................. 19 10.5 Special Adjustments........................................... 19 10.6 Payment of Operating Costs.................................... 20 10.7 Disputes Regarding Operating Costs Statements................. 20 10.8 Billing Addresses............................................. 20


ARTICLE 11 RECORD KEEPING, REPORTING..................................... 21 11.1 Books and Records of the Partnership.......................... 21 11.2 Partner Access to Books and Records........................... 21 11.3 Notice of Material Events..................................... 22 11.4 Administration of the Partnership Accounts.................... 22


ARTICLE 12 FINANCIAL YEAR, ANNUAL ACCOUNTS, OTHER AUDIT RIGHTS........... 22 12.1 Financial Years............................................... 22 12.2 Preparation and Certification of Annual Financial Statements.. 22 12.3 Annual Accounts Approval and Disputes......................... 23 12.4 Disputes as to Significant Monetary Amounts................... 23


ARTICLE 13 ANNUAL PLAN, FIVE YEAR DEMAND FORECAST; PARTNER SELF
PROCUREMENT RIGHTS; DISPUTES REGARDING EHS AND PERSONNEL
COMPENSATION EXPENDITURES..................................... 24 13.1 Annual Plan................................................... 24 13.2 Five Year Demand Forecast..................................... 24 13.3 Partner Rights to Self-Procurement of Strategic Raw Materials. 25 13.4 Disputes Regarding EHS and Personnel Compensation
Expenditures................................................ 28


ARTICLE 14 DISCRETIONARY CAPITAL PROJECTS PROPOSED BY THE PARTNERS,
UNILATERAL CAPITAL PROJECTS................................... 29 14.1 Discretionary Capital Projects Proposed by a Partner.......... 29 14.2 Detailed Study................................................ 29 14.3 If Both Partners Desire to Proceed with a Discretionary
Capital Project............................................. 30 14.4 Right to Qualified Independent Engineer Confirmation.......... 30 14.5 Unilateral Capital Projects; Unilateral Capital Project
Threshold................................................... 30 14.6 Risks and Benefits Borne by Proceeding Partner................ 30 14.7 Disputes Regarding any Unilateral Capital Project
Implementation Plan......................................... 31 14.8 Management Committee Disapproval Does Not Prohibit Proceeding
with a Project as a Unilateral Capital Project.............. 31 14.9 Adjustment to Unilateral Capital Project...................... 31 14.10 No Rights to Technology....................................... 31


ARTICLE 15 ADJUSTMENTS OF INTERESTS FOR UNILATERAL CAPITAL PROJECTS THAT
AFFECT CAPACITY............................................... 31 15.1 Unilateral Capital Projects that Increase Production
Capacity.................................................... 31 15.2 Change to Offtake Percentages................................. 31 15.3 Allocation of Capital Costs................................... 32


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ARTICLE 16 ALLOCATION OF PROFITS AND LOSSES.............................. 32


ARTICLE 17 DISTRIBUTIONS................................................. 32 17.1 Distributions of Cash......................................... 32 17.2 Classification of Proceeds.................................... 32


ARTICLE 18 RATIFICATION OF PRIOR BUSINESS................................ 32


ARTICLE 19 INDEMNIFICATION, WAIVERS...................................... 33 19.1 Indemnification of the Operator............................... 33 19.2 Indemnification for Product Liability and Related Claims...... 33 19.3 Indemnification for Failure to Timely Make Payment............ 33 19.4 Indemnification Procedures.................................... 33 19.5 Waiver of Claims.............................................. 34 19.6 No Warranties or Indemnities.................................. 34 19.7 Liability of Partners......................................... 35


ARTICLE 20 USE OF TECHNOLOGY............................................. 35 20.1 Use by Bayer Partner of Lyondell License...................... 35 20.2 Accommodation Fee............................................. 35 20.3 No Application to Bayer Spare Capacity Sold to Lyondell....... 35 20.4 Certification................................................. 35 20.5 No Technology Transfer or Grant of License under this
Agreement................................................... 36 20.6 Lyondell Group Technology..................................... 36


ARTICLE 21 COMPETITION................................................... 36


ARTICLE 22 RESTORATION FOLLOWING CASUALTY LOSS........................... 36 22.1 Restoration Absent Mutual Agreement for First Twenty Years.... 36 22.2 No Restoration Following Major Casualty Occurring After First
Twenty Years................................................ 36 22.3 Restoration................................................... 36 22.4 Where Facilities Are Not Being Restored....................... 37 22.5 Decisions..................................................... 37 22.6 Definition of Major Casualty.................................. 37


ARTICLE 23 RESTRICTION OF TRANSFERS AND PLEDGES.......................... 37 23.1 Prohibition on Transfer Unless Exception Applies.............. 37 23.2 Permitted Transfers to an Affiliate........................... 37 23.3 Certain Transfers in Connection with Successor Parent Transfer
or Permitted Successor...................................... 37 23.4 Assumption of Obligations by Assignee......................... 38 23.5 Admission of a New Partner.................................... 39 23.6 Continuation of the Partnership............................... 39 23.7 New Partners Bound by Terms and Conditions of this Agreement.. 39 23.8 No Application to Transfers or Pledges of Ownership Interests
within Partners............................................. 39


ARTICLE 24 TERMINATION, DISSOLUTION OF THE PARTNERSHIP................... 39 24.1 Events of Dissolution and Liquidation......................... 39 24.2 No Dissolution of the Partnership Upon Bankruptcy............. 39


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ARTICLE 25 CONTINUATION OR LIQUIDATION................................... 39 25.1 Winding Up or Continuation of the Partnership................. 39 25.2 Winding Up and Liquidation.................................... 40 25.3 Offering of Partnership Assets................................ 40 25.4 Payment of Debts; Liquidating Distributions................... 40 25.5 Liquidation Report............................................ 40


ARTICLE 26 CLAIMS AFTER THE DISSOLUTION OF THE PARTNERSHIP............... 41


ARTICLE 27 CONFIDENTIALITY............................................... 41 27.1 Obligation Not to Disclose or Misuse Confidential Information. 41 27.2 Disclosures Required by Law................................... 41 27.3 Confidential Information Remains Property of Disclosing Party. 42 27.4 Survival...................................................... 42 27.5 Relationship With License Agreements.......................... 42


ARTICLE 28 MISCELLANEOUS................................................. 42 28.1 Notices....................................................... 42 28.2 Construction.................................................. 44 28.3 Severability.................................................. 44 28.4 Tax Matters................................................... 44 28.5 Governing Law................................................. 45 28.6 Amendment and Waiver.......................................... 45 28.7 Performance Extended to Next Business Day..................... 45 28.8 Benefits of Agreement Restricted to the Parties............... 45 28.9 Dispute Resolution............................................ 45


iv


GENERAL PARTNERSHIP AGREEMENT


THIS GENERAL PARTNERSHIP AGREEMENT (this "AGREEMENT") is dated 18 December 2000 and is made between BAYER POLYURETHANES B.V. (the "BAYER PARTNER"), a company incorporated under the laws of The Netherlands, having its registered office at Weenapoint D, Weena 762, 3014 DA, Rotterdam, The Netherlands and LYONDELL PO-11 C.V. (the "LYONDELL PARTNER"), a limited partnership formed under the laws of The Netherlands, having its registered office at Weenapoint D, Weena 762, 3014 DA, Rotterdam, The Netherlands.


The Bayer Partner and the Lyondell Partner are hereinafter individually referred to as a "PARTNER" and collectively they are referred to as the "PARTNERS".


WHEREAS:


(A) On 31 March 2000, Lyondell entered into certain arrangements with Bayer and Bayer Corporation pursuant to which, inter alia, the Bayer Group purchased the Lyondell Group's world-wide polyether polyols business. At the same time Lyondell created a Delaware limited partnership to which certain of Lyondell's PO and associated co-product plants were contributed by Lyondell and in which Affiliates of Bayer Corporation purchased limited partnership interests.


(B) As part of these arrangements, Lyondell, Bayer and Bayer Corporation entered into the Master Transaction Agreement. The Master Transaction Agreement contemplates Bayer's and Lyondell's joint participation in, among other things, a manufacturing joint venture for a grassroots "PO-11" PO/SM plant employing technology owned by an Affiliate of Lyondell.


(C) The Partners have agreed to form a general partnership for the development, construction, ownership, maintenance and operation of the PO-11 Plant Facilities and the production therein of PO and SM for the Partners, have entered into agreements to license to each Partner certain technology from an Affiliate of Lyondell and have agreed that the Operator will be the development manager and the operator of the PO-11 Plant Facilities in accordance with the terms and conditions of the Operating Agreement.


(D) In accordance with the terms and conditions of this Agreement, the Partners wish to enter into a general partnership agreement under the laws of The Netherlands to form a general partnership ("vennootschap onder firma").


NOW THEREFORE, the Parties hereto agree as follows:


ARTICLE 1 DEFINITIONS


Capitalised terms that are used and not otherwise defined in this Agreement have the meanings given to them in Exhibit A.


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ARTICLE 2 FORMATION OF PARTNERSHIP


2.1 Formation of the Partnership. The Partners hereby form a general partnership ("vennootschap onder firma"), hereinafter referred to as the "PARTNERSHIP", pursuant to the laws of The Netherlands. The rights and duties of the Partners shall be as provided in those laws and under the terms and conditions of this Agreement.


2.2 Partnership Percentages. The "PARTNERSHIP PERCENTAGE" means the percentage share of each Partner in profits and losses, assets (subject to Article 14) and voting rights in the Partnership in accordance with the terms of this Agreement. The Partnership Percentage of the Bayer Partner and the Lyondell Partner is 50% (fifty percent) for each Partner.


ARTICLE 3 NAME, SEAT, TRADE REGISTER, MANAGING PARTNER


3.1 Name of the Partnership. The name of the Partnership shall be "Lyondell Bayer Manufacturing Maasvlakte VOF".


3.2 Seat of the Partnership. The Partnership shall have its seat at Rotterdam, The Netherlands.


3.3 Registration. The Partnership shall be registered with the Trade Register of the Chamber of Commerce at Rotterdam, The Netherlands.


3.4 Managing Partner. The Lyondell Partner shall be the "MANAGING PARTNER", provided, however, that upon fulfilment of any of the Lyondell Suspending Conditions, the Bayer Partner will become the Managing Partner. Upon such event, the references to the Lyondell Partner in its capacity as Managing Partner, including under Article 6, Article 8, Article 10, Article 11, Article 12, Article 13, Article 14, Article 25 and Article 26, shall be deemed changed to refer to the Bayer Partner. Upon fulfilment of any of the Lyondell Dissolving Conditions, the Lyondell Partner shall again become the Managing Partner. Additionally, if a competent court grants a request for suspension of payments pursuant to a Suspension of Payments Proceeding filed by the Lyondell Partner, then effective upon the grant of the request, the Bayer Partner and the Lyondell Partner acting jointly shall be the Managing Partner. Upon such event, the references to the Lyondell Partner in its capacity as Managing Partner, including Article 6, Article 8, Article 10, Article 11, Article 12, Article 13, Article 14, Article 25 and Article 26, shall be deemed changed to refer to both Partners acting jointly. If and when the suspension of payments ends without resulting in a Lyondell Suspending Condition, then the Bayer Partner shall cease to be a Managing Partner, effective upon the effective date of termination of the Suspension of Payments Proceeding.


3.5 Solely a Manufacturing Joint Venture. Neither Partner shall create the impression through its marketing, sales or other activities that the Partnership is more than a manufacturing joint venture.


ARTICLE 4 PURPOSE AND BUSINESS OF THE PARTNERSHIP


4.1 Business of the Partnership. The business of the Partnership shall consist of the development, construction, ownership, maintenance and operation of the PO-11 Plant Facilities and of the production therein of PO and SM for the sole account of the Partners.


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4.2 Activities. In conducting such activities, the Partnership may lease, purchase or sell personal and real estate property, purchase, sell or use any kind of raw materials, energy or other supplies, enter into contracts of any nature, employ and discharge agents or employees, make financial arrangements, borrow or lend funds and mortgage the assets of the Partnership, participate in and co-operate with legal entities and other functions as may be necessary or desirable in connection with the business described in Section 4.1 of this Agreement.


ARTICLE 5 TERM


5.1 Initial Contract Term. This Agreement shall enter into force as of the date on which it has been signed by all of the Partners and shall end on the 50th (fiftieth) anniversary of Commercial Start-up (hereinafter the "INITIAL CONTRACT TERM"), unless previously terminated in accordance with Article 24.


5.2 Extension of the Term. After the expiration of the Initial Contract Term or the most recent extension period, as applicable, the Partnership shall be extended each time under the same conditions for a period of two years, unless one of the Partners elects to terminate the Partnership by registered letter no later than 24 (twenty-four) months prior to the original or extended date of expiry.


ARTICLE 6 CAPITAL CONTRIBUTIONS


6.1 General.


6.1.1 The Partners shall contribute capital to fund the PO-11 Project
Costs in the ratio of the Partnership Percentages. The Partners
acknowledge that as of the Signing Date, LCNL has incurred
PO-11 Project Costs in an agreed value amount of NLG
248,000,000 (two hundred and forty-eight million Dutch
Guilders), including NLG 83,000,000 (eighty-three million Dutch
Guilders) of PO-11 Project Costs incurred and to be incurred
during calendar year 2000. The Partners further acknowledge
that on, or within 24 (twenty-four) hours after, the Signing
Date, (a) the Bayer Partner shall purchase a 50% (fifty
percent) undivided joint ownership interest in the PO-11
Project Assets pursuant to the Sale and Transfer Agreement for
NLG 124,000,000 (one hundred twenty-four million Dutch
Guilders), on which applicable VAT (if any) at the standard
rate will be charged; (b) the Lyondell Partner shall contribute
to the Partnership a 50% (fifty percent) undivided joint
ownership interest in the PO-11 Project Assets in exchange for
the Lyondell Partner's Partnership Interest in the Partnership;
and (c) the Bayer Partner shall contribute to the Partnership
its 50% (fifty percent) undivided joint ownership interest in
the PO-11 Project Assets in exchange for the Bayer Partner's
Partnership Interest in the Partnership. In furtherance of the
Sale and Transfer Agreement, and the contributions by the
Partners described in clauses (b) and (c) of the prior
sentence, (v) the Bayer Partner, the Lyondell Partner and the
Partnership shall enter into the Partners Transfer Agreement as
of the Signing Date; (w) LCNL and the Partnership shall enter
into the


3


Assignment and Assumption Agreement as of the Signing Date; (x)
LCNL and the Bayer Partner shall enter into the Notarial Deed
as of the Signing Date; (y) the Lyondell Partner, its general
partner and the Partnership shall enter into the Lyondell
Notarial Deed as of the Signing Date; and (z) the Bayer Partner
and the Partnership shall enter into the Bayer Notarial Deed as
of the Signing Date. Payments by the Rotterdam Port Authority
in respect of certain costs of infrastructure constructed by
the Partnership are currently expected to be made on various
dates during the Development Phase Recovery Period as agreed
between the Partnership and the Rotterdam Port Authority for
costs incurred by the Partnership to that date. Such payments
shall be applied against then current and future PO-11 Project
Costs or, following the end of the Development Phase Recovery
Period, shall be distributed to the Partners in accordance with
their Partnership Percentages.


6.1.2 During the Development Phase Recovery Period, the Bayer Partner
and the Lyondell Partner will make capital contributions to the
Partnership pursuant to cash calls administered by the Lyondell
Partner to fund PO-11 Project Costs and other obligations of
the Partnership during the Development Phase. Cash calls shall
be denominated in Euros and shall include applicable VAT and
similar charges on the underlying invoices. Each cash call
shall be accompanied by a "DEVELOPMENT PHASE CASH CALL
STATEMENT", which shall show for any expenditure in excess of
EUR 100,000 (one hundred thousand Euros) each party to whom
payment is due, a brief explanation of the purpose of the
payment and the calculation of the amount payable by each
Partner in accordance with the format included in Schedule
6.1.2A. Each cash call shall be accompanied, if applicable, by
(a) a copy of the request for payment from the EPC Contractor,
(b) a copy of the Operator's invoice for Service Charges and
(c) a copy of the invoice in respect of any amount in excess of
EUR 250,000 (two hundred fifty thousand Euros) payable to any
Person other than the EPC Contractor or the Operator. In order
to best match funding of the Partnership Accounts with the
spending for each month, the Lyondell Partner shall determine
the date(s) on which the Partners shall fund the Partnership
Accounts. The information to the two Partners shall be provided
at least 10 (ten) calendar days prior to the date on which the
Partnership Accounts must be funded. The Lyondell Partner may
issue two or more cash calls during a month if it determines
such action is advisable. The Lyondell Partner shall attempt to
minimise overdrafts and funding balances in the Partnership
Accounts in determining the amount and due dates for payments.


The Partners shall pay the cash calls in accordance with their
Partnership Percentages.


4


For information purposes only, a schedule of anticipated
spending for PO-11 Project Costs is attached hereto as Schedule
6.1.2B. Actual spending may differ from that shown on Schedule
6.1.2B.


6.1.3 During the Production Term, the Bayer Partner and the Lyondell
Partner will make such capital contributions to the Partnership
as are necessary to fund Capital Projects undertaken in
accordance with Article VII of the Operating Agreement. The
Lyondell Partner shall administer cash calls for each such
capital contribution. In order to best match funding of the
Partnership Accounts with the spending for each Capital
Project, the Lyondell Partner shall determine the date on which
the Partners shall fund the Partnership Accounts. The
information to the two Partners shall be provided at least 10
(ten) calendar days prior to the date on which the Partnership
Accounts must be funded. The Lyondell Partner shall prepare the
"CAPITAL COSTS STATEMENTS" which are to accompany each cash
call. The Capital Costs Statements shall include separate
breakdowns by category for EHS Capital Projects, Maintenance
Capital Projects, Enterprise Consistency Capital Projects and
Discretionary Capital Projects as to which Capital Costs are
included in the cash call. A pro forma Capital Costs Statement
is attached hereto as Schedule 6.1.3.


6.1.4 Each Partner shall timely pay its share of any cash call in
connection with the Development Phase Cash Call Statement or
the Capital Costs Statement, as the case may be, on the date
specified in the cash call. Payments shall be timely made in
immediately available funds, such that funds are credited to
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