EXHIBIT 2.3
CONFORMED COPY
AMENDMENT NO. 3 dated as of April 27, 2005 (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, as amended);
WHEREAS Marathon Corporation, Marathon, Ashland, New
Ashland Inc., certain of their respective affiliates and the Company are
parties to a Master Agreement, pursuant to which the parties have agreed to
effect the Transactions described therein;
WHEREAS the parties have entered into Amendment No. 1 to
the Master Agreement, dated April 27, 2005, amending certain terms of the
Master Agreement;
WHEREAS Marathon Corporation, Marathon, Ashland, New
Ashland Inc. and certain of their respective affiliates are parties to an
Amended and Restated Tax Matters Agreement, dated April 27, 2005, which
sets forth the rights and obligations of the parties with respect to Taxes
in connection with the Transactions;
WHEREAS in connection with the MAP Partial Redemption,
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.
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. PERCENTAGE INTEREST AFTER MAP PARTIAL
REDEMPTION
Effective as of the date of this Amendment, Section
3.01(b) of the MAP LLC Agreement (as amended) is amended and restated 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) $3.815 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)
$10.039 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 2. 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 3. RECEIVABLES PURCHASE AND SALE AGREEMENT
The Receivables Purchase and Sale Agreement (set forth in
Attachment B) is amended and restated in its entirety. Such agreement and
exhibits thereto are set forth in a new Attachment B attached hereto.
SECTION 4. 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 5. 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 6. 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 7. NO THIRD-PARTY BENEFICIARIES This Amendment is
not intended to confer upon any person other than the parties hereto any
rights or remedies.
SECTION 8. 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 9. 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 10. CONTINUATION OF MAP LLC AGREEMENT The MAP LLC
Agreement continues in full force and effect, except as expressly amended
herein.
SECTION 11. CONSEQUENCES OF TERMINATION OF MASTER
AGREEMENT In the event of a termination of the Master Agreement pursuant to
Section 11.01 of the Master Agreement, the parties further agree that, as
of the date the Master Agreement is terminated the Company Leverage Policy
(set forth in Schedule 8.14) shall be amended and restored to its language
existing prior to the execution of Amendment No. 2 to the Amended and
Restated Limited Liability Company Agreement, dated March 18, 2004.
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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
ASHLAND INC.,
By /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Chief Executive Officer