EXHIBIT 2.5
AMENDMENT NO. 2 dated as of March 18, 2004 (this
"Amendment"), to the Amended and Restated Limited
Liability Company Agreement dated as of December 31, 1998
(the "MAP LLC Agreement") of Marathon Ashland Petroleum
LLC (the "Company"), by and between Ashland Inc., a
Kentucky corporation ("Ashland") and Marathon Oil Company,
an Ohio corporation ("Marathon"), a wholly owned
subsidiary of Marathon Oil Corporation, a Delaware
Corporation ("Marathon Corporation").
WHEREAS Ashland and Marathon are the only Members of the Company and
are parties to the MAP LLC Agreement, which sets forth the rights and
responsibilities of each of them with respect to the governance, financing and
operation of the Company (capitalized terms used in this Amendment and not
defined herein shall have the meanings given such terms in the MAP LLC
Agreement);
WHEREAS Marathon Corporation, Marathon, Ashland, New EXM Inc., a
Kentucky Corporation ("New Ashland Inc."), certain of their respective
affiliates and the Company are parties to a Master Agreement (as defined
herein), pursuant to which the parties have agreed to effect the Transactions
described therein;
WHEREAS Marathon Corporation, Marathon, Ashland, New Ashland Inc.
and certain of their respective affiliates are parties to a Tax Matters
Agreement (as defined herein), which sets forth the rights and obligations of
the parties with respect to Taxes in connection with the Transactions (as
defined herein);
WHEREAS in connection with the MAP Partial Redemption (as defined
herein), Marathon and Ashland wish to adjust the Percentage Interests of the
Members;
WHEREAS the Members wish to amend the MAP LLC Agreement to
facilitate the Transactions.
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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. DEFINITIONS
Effective as of the date of this Amendment, Section 1.01 of the MAP
LLC Agreement is amended by adding the following defined terms at the
appropriate alphabetical location:
"Closing Date" has the meaning set forth in the Master Agreement.
"Closing" has the meaning set forth in the Master Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Cold Assets" has the meaning set forth in Section 5.05(b).
"Collection Policies and Procedures" means the policies and
procedures set forth on Schedule 5.05 attached hereto and pursuant to which
the Company shall act as the collection agent on behalf of New Ashland Inc.
with respect to the Distributed Receivables.
"Distributed Receivables" has the meaning set forth in the Master
Agreement.
"Distribution Period" means each of (i) the three-month periods
ended March 31, June 30, September 30 and December 31 of each Fiscal Year, and
(ii) if such Distribution Period would otherwise include the Closing Date,
each of (a) the period beginning on the day after the last day of the Fiscal
Quarter immediately preceding the Closing Date and ending at the close of
business on the Closing Date; and (b) the period beginning on the day after
the Closing Date and ending on the next to occur of March 31, June 30,
September 30 and December 31.
"Excess Section 751 Property" has the meaning set forth in Section
5.05(b).
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"Final Determination" has the meaning set forth in the Tax Matters
Agreement.
"Form of Receivables Assignment" means the Form of Receivables
Assignment attached as Attachment A hereto.
"Incidental Cash" shall mean (a) xxxxx cash, (b) refining, retail
outlets and transportation ("RMT") working funds, (c) depository account
balances for the RMT business (automated clearinghouse transmissions submitted
on the most recent banking day in the applicable jurisdiction immediately
preceding the Closing Date or later will be for the account of the Company and
its subsidiaries), (d) funds in transit relating to retail outlet deposits,
and (e) uncollected funds in lockboxes and lockbox bank accounts for the RMT
business (automated clearinghouse transmissions submitted on the most recent
banking day in the applicable jurisdiction immediately preceding the Closing
Date or later will be for the account of the Company and its subsidiaries).
"IRS" means the U.S. Internal Revenue Service.
"Master Agreement" means the Master Agreement, dated as of March 18,
2004 among Marathon Corporation, a Delaware Corporation ("Marathon
Corporation"), Marathon, Ashland, New EXM Inc., a Kentucky Corporation ("New
Ashland Inc."), certain of their respective affiliates and the Company
pursuant to which the parties have agreed to effect the Transactions.
"Member Loans" means any loan of cash or other property by the
Company to a Member.
"MAP Partial Redemption" has the meaning set forth in the Master
Agreement.
"MAP Partial Redemption Amount" has the meaning set forth in the
Master Agreement.
"MAP Partial Redemption Date" means the date on which the MAP
Partial Redemption is effected pursuant to Section 1.01 of the Master
Agreement.
"Outstanding Member Loan" means any Member Loan to the extent that
such Member Loan has not been repaid by the borrower to the Company.
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"Pass-Through Items" has the meaning set forth in the Tax Matters
Agreement.
"Receivables Sales Facility" means the facility for sales of
accounts receivable by the Company to a party unrelated to any Member pursuant
to the Receivables Purchase and Sale Agreement and exhibits thereto, attached
as Attachment B to this Agreement or such additional or other terms as agreed
by the parties, it being understood that Ashland (or, after the Closing, New
Ashland Inc.) shall agree to such additional or other terms proposed by Mexico
or the Company unless in its good faith judgment such terms adversely affect
the treatment of such sales as sales for tax purposes.
"Refund" means any refund of Taxes, including any reduction of Taxes
paid or payable by means of credits, offsets or otherwise.
"Section 704(b) Book-Up" has the meaning set forth in Section 6.19.
"Section 751 Property" means Section 751 property, as such term is
defined in U.S. Treasury Regulation ss. 1.751-1(e).
"Tax" or "Taxes" means all forms of taxation imposed by any
governmental authority, including net income, gross income, alternative
minimum, sales, use, ad valorem, gross receipts, value added, franchise,
license, transfer, withholding, payroll, employment, excise, severance, stamp,
property, custom duty, taxes or governmental charges, together with any
related interest, penalties or other additional amounts imposed by a Tax
Authority, and including all liability for or in respect of any of the
foregoing as a result of being a member of a consolidated or similar group or
a partner in an entity treated as a partnership or other pass-through entity
for Tax purposes or as a result of any tax sharing or similar contractual
agreement.
"Tax Authority" means any governmental authority imposing Taxes and
the agency, if any, charged with the collection of such Taxes for such
authority.
"Tax Matters Agreement" means the Tax Matters Agreement, dated as of
March 18, 2004, among Ashland, New Ashland Inc., Marathon Corporation,
Marathon, certain of
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their respective affiliates and the Company, that sets forth the rights and
obligations of such parties with respect to Taxes in connection with the
Transactions.
"Transactions" has the meaning set forth in the Master Agreement.
"Undistributed Cash" means any Short Term Investments held by the
Company immediately following the MAP Partial Redemption.
SECTION 2. DEFINITION OF DISTRIBUTABLE CASH
Effective as of the date of this Amendment, Section 1.01 of the MAP
LLC Agreement is amended by amending and replacing the defined term
"Distributable Cash" as follows:
"Distributable Cash" means, for each Distribution Period including a
Distribution Period that includes the Closing Date, without duplication:
(a) the Short-Term Investments of the Company and its subsidiaries
on the last day of such Distribution Period, minus
(b) the Ordinary Course Debt of the Company and its subsidiaries on
the last day of such Distribution Period, minus
(c) the Tax Distribution Amount, if any, to be distributed under
Section 5.01(a) in respect of such Distribution Period, minus
(d) funds held on the last day of such Distribution Period for
financing Special Projects (including the Detroit Clean Fuels/Expansion
Project) or Permitted Capital Projects/Acquisitions, minus
(e) if the notional repayment of principal for Special Project
Indebtedness or Permitted Capital Project/Acquisition Indebtedness during
such Distribution Period calculated using a notional repayment schedule
established and approved by the Board of Managers in accordance with the
Company Leverage Policy was more than the amount of actual principal
repayments for such Special Project Indebtedness or Permitted Capital
Project Acquisition
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Indebtedness during such Distribution Period, the amount of such excess, plus
(f) if the amount of the actual principal repayments for Special
Project Indebtedness or Permitted Capital Project/Acquisition Indebtedness
during such Distribution Period was more than the notional repayment of
principal for such Special Project Indebtedness or Permitted Capital
Project/Acquisition Indebtedness during such Distribution Period (calculated
in the manner described in clause (e) above), the amount of such excess, plus
or minus
(g) any adjustments or reserves (including any adjustments for
minimum cash balance requirements, including cash reserves for accrued or
withheld Taxes not yet due) in the amounts and for the time periods
established and approved by the Board of Managers pursuant to a vote in
accordance with Section 8.07(b), minus
(h) the proceeds of any asset sales, dispositions or sale leaseback
arrangements, effected pursuant to Section 9.15(b) of the Master Agreement, to
the extent such asset sales, dispositions or sale leaseback arrangements are
not effected in the ordinary course of the Company's business and are not
reflected in the Company's Business/Tactical Plan & Budget 2004-2006, dated
December 16, 2003, plus
(i) with respect to determining the MAP Partial Redemption Amount
(as defined in the Master Agreement), all out of pocket costs and expenses to
the extent paid by the Company prior to the Closing Date in connection with
any asset sales, dispositions, or sale leaseback arrangements described in
clause (h) above, plus
(j) with respect to determining the MAP Partial Redemption Amount
(as defined in the Master Agreement), all out of pocket costs and expenses
paid by the Company to arrange, maintain or terminate any Working Capital
Facilities (as defined in the Company Leverage Policy, set forth in Schedule
8.14) (other than interest), Receivables Sales Facilities or other
arrangements to provide financing to the Company (to the extent such costs and
expenses are paid prior to
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the Closing Date).
In applying the definition of "Distributable Cash" for purposes of the
definition of "MAP Adjustment Amount" in the Master Agreement, any reduction
in Distributable Cash resulting from the MAP Partial Redemption (as defined in
the Master Agreement) or any payment pursuant to Section 9.09(b) of the Master
Agreement shall be disregarded.
SECTION 3. PERCENTAGE INTEREST AFTER MAP PARTIAL REDEMPTION
Effective as of the date of this Amendment, Section 3.01 of the MAP
LLC Agreement is amended and restated to be Section 3.01(a), and a new Section
3.01(b) is added immediately thereafter as follows:
(b) Immediately following the MAP Partial Redemption, the respective
Percentage Interests of Ashland and Marathon will be determined as follows:
Ashland's Percentage Interest will equal the quotient, expressed as a
percentage, of (x) $2.915 billion plus the MAP Adjustment Amount (as defined
in the Master Agreement) minus the MAP Partial Redemption Amount (as defined
in the Master Agreement) divided by (y) $7.671 billion plus 100% of the
Distributable Cash of the Company as of the Closing Date minus the MAP Partial
Redemption Amount. Marathon's Percentage Interest will equal 100% minus
Ashland's Percentage Interest. The Percentage Interests of the Members will be
appropriately adjusted if the MAP Partial Redemption Amount is increased in
accordance with Sections 1.01 or 1.06 of the Master Agreement.
SECTION 4. DISTRIBUTIONS
Effective as of the date of this Amendment, Section 5.01 of the MAP
LLC Agreement is amended and restated in its entirety as follows:
SECTION 5.01. Distributions. (a) No distribution with respect to a
Tax Distribution Amount shall be made under this Section 5.01 with respect to
a Distribution Period, and the Tax Distribution Amount with respect to such
Distribution Period shall be $0.00, unless the Board of Managers, pursuant to
a vote in accordance with Section 8.07(b), determines that there shall be such
a distribution. If the Board of Managers, pursuant to a vote
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in accordance with Section 8.07(b), determines that there shall be a
distribution under this Section 5.01 with respect to any Distribution Period
during a Taxable Year, then, within 45 days after the end such Distribution
Period, the Company shall distribute to the Members (the date of such
distribution being a "Distribution Date") an amount in cash (the "Tax
Distribution Amount") determined as follows:
(i) The maximum Tax Liability of each Member with respect to its
allocable portion (as provided in Section 6.03) of the Company's
estimated taxable income for such Distribution Period shall be
determined, based upon the highest aggregate marginal statutory Federal,
state and local income tax rate (determined taking into account the
deductibility, to the extent allowed, of income-based taxes paid to
governmental entities) to which any Member may be subject for the related
Fiscal Year (and excluding any deferred taxes) (the "Aggregate Tax
Rate").
(ii) If the Tax Liability determined in clause (i) is positive with
respect to either Member, there shall be a cash distribution to each of
the Members, in accordance with their Percentage Interests, of an
aggregate amount such that neither Member shall have received
distributions under this clause and subsection (b) below for such portion
of such Fiscal Year in an amount less than its Tax Liability for such
portion of such Fiscal Year.
(b) No distribution of Distributable Cash shall be made under this
Section 5.01(b) with respect to a Distribution Period unless the Board of
Managers, pursuant to a vote in accordance with Section 8.07(b), determines
that there shall be such a distribution. If the Board of Managers, pursuant to
a vote in accordance with Section 8.07(b), determines that there shall be a
distribution under this Section 5.01(b) with respect to any Distribution
Period, the Company shall distribute to the Members such amount of
Distributable Cash as is determined to be distributed by such vote of the
Board of Managers. Subject to Section 5.02(b), each such distribution shall be
allocated between the Members pro rata based upon their respective Percentage
Interests.
(c) The Company shall prepare and distribute to each Member within
45 days after the end of each
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Distribution Period a statement (a "Distributions Calculation Statement")
setting forth the calculations (in reasonable detail) of (i) the Tax
Distribution Amount for each Member with respect to such Distribution Period
(as if the Board of Managers had determined that there shall be a distribution
under Section 5.01(a) for such Distribution Period, regardless of whether such
a determination was actually made), (ii) the amount of Distributable Cash with
respect to such Distribution Period (as if the Board of Managers had
determined that there shall be a distribution under Section 5.01(b) for such
Distribution Period, regardless of whether such a distribution was actually
made) and (iii) the allocation between the members of distributions, if any,
under Sections 5.01(a) and (b) for such Distribution Period. Such
Distributions Calculations Statements shall be distributed to such Members
regardless of the amount, if any, that is actually distributed to such Members
during such Distribution Period.
(d) Notwithstanding anything to the contrary in this Agreement, any
agreement reached between the Members to distribute any amount of cash
different from the amounts which would be calculated in accordance with the
methodology set forth in Section 5.01(a) and Section 5.01(b) above shall not
alter or waive in any manner the obligations of the Company to prepare and
deliver the Distributions Calculation Statement as set forth in Section
5.01(c) above, and after any such agreement has been reached the Company shall
continue to prepare and deliver such Distributions Calculation Statement with
respect to each Distribution Period as if no such agreement had been reached.
SECTION 5. PARTIAL REDEMPTION OF ASHLAND MEMBERSHIP INTEREST
Effective as of the date of this Amendment, Article V of the MAP LLC
Agreement is amended by adding the following new Section 5.05:
SECTION 5.05. MAP Partial Redemption. (a) On the MAP Partial
Redemption Date, the Company shall effect the MAP Partial Redemption as
described in Section 1.01 of the Master Agreement by distributing to Ashland
the MAP Partial Redemption Amount in redemption of a portion of its Membership
Interest in the Company and by adjusting the Percentage Interests of the
Members as set forth in Section 3.01 of this Agreement. It is understood that
no Tax
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Distribution shall be made with respect to the MAP Partial Redemption. The MAP
Partial Redemption Amount shall be distributed in cash and by the distribution
by the Company of the Distributed Receivables, each in the amount determined
in accordance with Section 1.01 of the Master Agreement. In connection with
the MAP Partial Redemption, on the Closing Date the Company shall, in
accordance with the Form of Receivables Assignment attached as Attachment A
hereto, (i) assign, transfer, or otherwise convey to Ashland, and Ashland
shall accept from the Company, the Distributed Receivables, together with all
Related Security and all Collections thereof (as such terms are defined in
Schedule 5.05 attached hereto) and (ii) shall distribute to Ashland cash (by
wire transfer of immediately available funds to a bank account, which will be
designated by Ashland at least two Business Days before the Closing Date). The
Company shall act as collection agent with respect to the Distributed
Receivables on behalf of New Ashland Inc. and pay the full amount of all
Collections thereof to New Ashland Inc. in accordance with the Collection
Policies and Procedures set forth in Schedule 5.05. A subsequent distribution
may be made with respect to any adjustments pursuant to Sections 1.06 or 9.13
of the Master Agreement.
(b) If, in accordance with the pre-filing agreement (as referenced
in Section 7.06 of the Tax Matters Agreement) or as a result of any other
Final Determination with respect to the MAP Partial Redemption, Ashland is
determined to have received Section 751 Property in excess of the amount of
Section 751 Property which, had Ashland actually received such amount, would
have resulted in no gain recognition to Ashland under Section 751(b) of the
Code (such excess amount of Section 751 Property, the "Excess Section 751
Property"), the Members agree that Ashland shall be deemed to have exchanged
its share of Undistributed Cash for such Excess Section 751 Property for the
purpose of determining the amount of gain, if any, recognized by Ashland under
Section 751(b) of the Code; provided, however, that
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if the total amount of Undistributed Cash is less than the fair market value
of the Excess Section 751 Property, then Ashland shall be deemed to have
exchanged, for an amount of Section 751 Property, its share of property other
than Section 751 Property, as designated by Ashland and Marathon prior to the
Closing Date, with a fair market value equal to its tax basis (the "Cold
Assets"); provided further, however, that the fair market value of such Cold
Assets shall equal the difference between the fair market value of the Excess
Section 751 Property and the total amount of Undistributed Cash. The Members
agree that any deemed exchange by Ashland of Undistributed Cash and/or Cold
Assets for Excess Section 751 Property pursuant to this Section 5.05(b) is
intended to be consistent with the principles of U.S. Treasury Regulation ss.
1.751-1(g), Example 3(c) and Example 5(d)(1).
SECTION 6. MEMBER LOANS
Effective as of the date of this Amendment, Article V of the MAP LLC
Agreement is amended by adding the following new Section 5.06:
SECTION 5.06. Member Loans. No Member Loans shall be permitted prior
to January 1, 2005, unless approved by the Board of Managers pursuant to a
vote in accordance with Section 8.07(b). At any time during the period
beginning on January 1, 2005 and ending on the date 45 days prior to the
Closing Date, Member Loans to Ashland shall be permitted on terms and
conditions consistent with the Company's historical practice with respect to
Member Loans, and Member Loans to Marathon shall be permitted pursuant to a
vote in accordance with Section 8.07(b). All Member Loans shall be repaid to
the Company by Ashland or Marathon, as applicable, no later than 30 days prior
to the Closing Date.
SECTION 7. TAX ALLOCATIONS
(a) Effective as of the date of this Amendment, Section 6.02(a) of
the MAP LLC Agreement is amended and restated as follows:
(a) Except as provided in Section 6.02(b), 6.02(c), 6.02(d),
6.02(e) and 6.17, Profit or Loss for any Fiscal Year shall be allocated
between the Members in proportion to their respective Percentage Interests.
(b) Effective as of the date of this Amendment, Article VI of the
MAP LLC Agreement is amended by adding the following new Sections 6.17, 6.18
and 6.19:
SECTION 6.17 Special Allocations. Notwithstanding anything to the
contrary in Article VI of this Agreement or any other provision of this
Agreement,
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Marathon shall be allocated any Profit and Loss associated with Pass-Through
Items that would be allocable to Ashland in the absence of this Section 6.17
and that are attributable to a payment that is (1) described in Section
12.01(d)(vii) of the Master Agreement, which results in a special non-pro rata
distribution to Ashland, or (2) made with respect to the St. Xxxx Park QQQ
Project or the Plains Settlement (as both are described in Section 9.09 of the
Master Agreement).
SECTION 6.18. Pre-Closing Allocation of Company Debt. Prior to the
Closing Date, the Company and the Members will take all steps necessary to
ensure that nonrecourse debt (within the meaning of U.S. Treasury Regulation
ss. 1.752-1(a)) is allocated to the Members for purposes of Section 752 of the
Code in a manner that results in each Member's share of aggregate Company debt
after the MAP Partial Redemption being equal to such Member's share of
aggregate Company debt immediately prior to such Redemption. For these
purposes, with respect to nonrecourse debt (within the meaning of U.S.
Treasury Regulation ss. 1.752-1(a)) if any, the Members agree to utilize, if
necessary to satisfy the preceding sentence, U.S. Treasury Regulation xx.xx.
1.752-3(a)(3) and 1.752-3(b).
SECTION 6.19 Section 704(b) Book-Up. The Company shall determine the
value of each item (or class of items, as appropriate) of its assets as of the
MAP Partial Redemption Date, based on the report prepared by Deloitte & Touche
LLP and delivered to Ashland and Marathon in accordance with the definition of
AR Fraction in Section 1.01 of the Master Agreement and shall, immediately
prior to the MAP Partial Redemption, adjust the Capital Accounts of the
Members under Treasury Regulation ss.1.704-1(b)(2)(iv)(f) and (g), based upon
the amount of Profit and Loss that would be allocated to each Member under
Section 6.02 of this Agreement with respect to each such item or class as if
the Company sold all of its assets for such values immediately before the MAP
Partial Redemption (the "Section 704(b) Book-Up"). Any resulting differences
between the book and tax basis of property resulting from such Section 704(b)
Book-Up shall be accounted for under Section 6.03 using a method selected by
the Members.
SECTION 8. ITEMS REQUIRING VOTE OF MEMBERS UNDER SECTION 8.07(b)
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Section 8.08 of the MAP LLC Agreement is hereby amended by adding
the following new Sections 8.08(r)-(t):
(r) the approval of a distribution under Section 5.01(a);
(s) the approval of a distribution under Section 5.01(b);
(t) making a Member Loan, except as otherwise provided in Section
5.06.
SECTION 9. COMPANY LEVERAGE POLICY
The Company Leverage Policy (set forth in Schedule 8.14) is amended
and restated in its entirety. Such policy is set forth in a new Schedule 8.14
attached hereto.
SECTION 10. RECEIVABLES SALES FACILITY
Article VIII of the MAP LLC Agreement is hereby amended by adding
the following new Section 8.20:
SECTION 8.20. Receivables Sales Facility. The Company may enter into
the Receivables Sales Facility.
SECTION 11. TRANSFER OF MEMBERSHIP INTEREST
Effective as of the date of this Amendment, Section 10.01 of the MAP
LLC Agreement is hereby amended by adding the following new Section 10.01(h):
(h) Transfer Pursuant to Master Agreement. Notwithstanding anything
to the contrary in this Agreement, Ashland's contribution, transfer and
conveyance of its Membership Interests to HoldCo (as defined in the Master
Agreement), HoldCo's acceptance of such contribution, transfer and conveyance
and the Transactions as contemplated by and in accordance with the Master
Agreement and the other Transaction Agreements (as defined in the Master
Agreement) are expressly permitted hereunder and shall not require approval
under Section 8.07 or otherwise.
SECTION 12. 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.
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SECTION 13. 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 14. 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 15. NO THIRD-PARTY BENEFICIARIES This Amendment is not
intended to confer upon any person other than the parties hereto any rights or
remedies.
SECTION 16. 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 17. 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.
SECTION 18. CONTINUATION OF MAP LLC AGREEMENT The MAP LLC Agreement
continues in full force and effect, except as expressly amended herein.
SECTION 19. CONSEQUENCES OF TERMINATION OF MASTER AGREEMENT In the
event of a termination of the Master Agreement pursuant to Section 11.01 of
the Master
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Agreement, the parties further agree that, as of the date the Master Agreement
is terminated: the definition of "Distributable Cash," sections 5.01 and 8.08,
and the Company Leverage Policy (set forth in Schedule 8.14) shall be amended
and restored to their language existing prior to this Amendment; Sections
5.05, 5.06, 6.17, and 8.20 shall be repealed in their entirety; and
allocations of Profit and Loss for the period or periods between the signing
of this Amendment and the date the Master Agreement is terminated shall be
made without regard to Section 6.17 or, to the extent such allocations have
been made under Section 6.17, the effects of such allocations shall be
reversed with future allocations of Profit and Loss.
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/ Xxxxxxxx X. Xxxxxxx, Xx.
_____________________________
Name: Xxxxxxxx X. Xxxxxxx, Xx.
Title: President
ASHLAND INC.,
By /s/ Xxxxx X. X'Xxxxx
_____________________________
Name: Xxxxx X. X'Xxxxx
Title: Chief Executive Officer
