Exhibit 10.1
AMENDMENT NO. 2 dated as of March 17, 2004 (this "Amendment"), to the
Put/Call, Registration Rights and Standstill Agreement dated as of January
1, 1998, as amended by Amendment No. 1 thereto dated as of December 31,
1998 (the "Agreement"), among Marathon Oil Company, an Ohio corporation
("Marathon"), Marathon Oil Corporation, a Delaware corporation (as
successor to USX Corporation) ("MRO"), Ashland Inc., a Kentucky corporation
("Ashland"), and Marathon Ashland Petroleum LLC (the "Company").
WHEREAS Marathon, MRO, Ashland and the Company are parties to the
Agreement (terms used in this Amendment and not defined herein shall have
the meanings given such terms in the Agreement);
WHEREAS Marathon and Ashland are entering into Amendment No. 1 dated
as of the date of this Amendment (the "MAP LLC Agreement Amendment") to the
Amended and Restated Limited Liability Company Agreement dated as of
December 31, 1998 of the Company, which facilitates the expansion of the
Company's Detroit refinery (the "Detroit Refinery" as previously reviewed
by the Board of Managers;
WHEREAS the expansion and clean fuels modification of the Detroit
Refinery, upon completion, is intended to increase the Detroit refinery's
crude oil throughput refining capacity to 100,000 barrels per calendar day,
enable it to produce low sulfur gasoline and ultra-low sulfur diesel fuel,
increase the crude oil pipeline capacity into the Detroit Refinery and
expand the truck loading rack to accommodate increased refinery output (the
"Project");
WHEREAS Marathon and Ashland wish to minimize any adverse impact that
the Project might have on the value of Ashland's Membership Interest in the
event that Marathon exercises the Marathon Call Right; and
WHEREAS, as a result of the Project, Marathon, MRO, Ashland and the
Company wish to amend the Agreement to reflect changes to the Marathon Call
Price set forth therein.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. AMENDMENTS. (a) Section 1.01 of the Agreement is amended to
insert the following definitions after the definition of "Designated
Sublease Agreements" and prior to the definition of "Disclosing Party":
"'DETROIT ADJUSTMENt' means the product of (x) Ashland's Percentage
Interest and (y) the amount, if any, by which the Detroit Refinery Working
Capital exceeds the Detroit Refinery Value; provided, however, that such
amount shall not be less than zero.
"'DETROIT REFINERY VALUE' means the difference of (x) the Appraised
Value of the Company determined by including the value of the Detroit
refinery less the Appraised Value of the Company determined by excluding
the value of the Detroit Refinery minus (y) the outstanding amount of
principal and accrued and unpaid interest on the Loan (as defined in the
MAP LLC Agreement Amendment).
"'DETROIT REFINERY WORKING CAPITAL' means the working capital related
to the Detroit Refinery (excluding working capital additions related to the
Project), calculated in accordance with the Company's present methodologies
for estimating pro forma working capital on a fair market value basis."
(b) Section 3.02(a) of the Agreement is amended to read in its
entirety as follows:
"(a) AMOUNT. The Marathon Call Price shall be an amount equal to (i)
the product of (x) 115% of the Appraised Value of the Company multiplied by
(y) Ashland's Percentage Interest, minus (ii) the Price Reduction and plus
(iii) 115% of the Detroit Adjustment."
Section 2. PARTIES IN INTEREST. This Amendment shall inure to the
benefit of, and be binding upon, the parties hereto and their respective
successors, legal representatives and permitted assigns.
Section 3. COUNTERPARTS. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. ANY RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR PROCEEDING RELATED TO OR ARISING
OUT OF THIS AMENDMENT, OR ANY TRANSACTION OR CONDUCT IN CONNECTION
HEREWITH, IS WAIVED.
Section 5. NO THIRD-PARTY BENEFICIARIES. This Amendment is not
intended to confer upon any person other than the parties hereto any rights
or remedies.
Section 6. INTERPRETATION. The headings contained in this Amendment
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Amendment. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation".
Section 7. SEVERABILITY. If any term or other provision of this
Amendment is invalid, illegal or incapable of being enforced by any rule or
Law, or public policy, all other conditions and provisions of this
Amendment shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions and amendments contemplated
hereby is not affected in any manner materially adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Amendment so as to effect the original intent of the
parties as closely as possible to the end that the transactions and
amendments contemplated hereby are fulfilled to the extent possible.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first written above.
MARATHON OIL COMPANY,
By:/s/X.X. Xxxxxxx, Xx.
Name:X.X. Xxxxxxx, Xx
Title: President
ASHLAND INC.,
By: J. Xxxxxx Xxxx
Name: J. Xxxxxx Xxxx
Title: Senior Vice President
and Chief Financial
Officer
MARATHON OIL CORPORATION,
By:/s/X.X. Xxxxxxx, Xx.
Name:X.X. Xxxxxxx, Xx
Title: President
MARATHON ASHLAND PETROLEUM LLC,
By:/s/X.X. Xxxxxxx
Name:X.X. Xxxxxxx
Title: Senior Vice President
