As filed with the Securities and Exchange Commission on March 29, 2011

File No. 001-35054

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

Amendment No. 1

to

FORM 10

GENERAL FORM FOR REGISTRATION OF SECURITIES

PURSUANT TO SECTION 12(B) OR 12(G) OF

THE SECURITIES EXCHANGE ACT OF 1934

 

 

Marathon Petroleum Corporation

(exact name of registrant as specified in its charter)

 

Delaware   27-1284632

(State of incorporation

or organization)

 

(I.R.S. Employer

Identification No.)

539 South Main Street
Findlay, Ohio
  45840-3229
(Address of principal
executive offices)
  (Zip code)

Registrant’s telephone number, including area code: (419) 422-2121

 

 

Copy to:

Ted W. Paris, Esq.

Baker Botts L.L.P.

3000 One Shell Plaza

910 Louisiana Street

Houston, Texas 77002-4995

(713) 229-1838

Fax: (713) 229-7738

 

 

Securities to be registered pursuant to Section 12(b) of the Act:

 

Title of Each Class Registered

 

Name of Each Exchange on Which
Such Class will be Registered

Common Stock, par value $0.01 per share   The New York Stock Exchange, Inc.

Securities to be registered pursuant to Section 12(g) of the Act:

None

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   þ (Do not check if a smaller reporting company)    Smaller reporting company   ¨

 

 

 


MARATHON PETROLEUM CORPORATION

INFORMATION INCLUDED IN INFORMATION STATEMENT

AND INCORPORATED BY REFERENCE IN FORM 10

CROSS REFERENCE SHEET BETWEEN INFORMATION STATEMENT AND ITEMS OF FORM 10

We have filed our information statement as Exhibit 99.1 to this Form 10. For your convenience, we have provided below a cross-reference sheet identifying where the items required by Form 10 can be found in the information statement.

 

Item
No.

  

Item Caption

  

Location in Information Statement

1.    Business.    See “Summary,” “Risk Factors,” “Cautionary Statement Concerning Forward-Looking Statements,” “The Spin-Off,” “Capitalization,” “Selected Historical Combined Financial Data,” “Unaudited Pro Forma Condensed Combined Financial Data,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Business,” “Relationship with Marathon Oil After the Spin-Off” and “Management.”
1A.    Risk Factors.    See “Risk Factors.”
2.    Financial Information.    See “Summary,” “Risk Factors,” “Capitalization,” “Selected Historical Combined Financial Data,” “Unaudited Pro Forma Condensed Combined Financial Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
3.    Properties.    See “Business.”
4.    Security Ownership of Certain Beneficial Owners and Management.    See “Security Ownership of Certain Beneficial Owners and Management.”
5.    Directors and Executive Officers.    See “Management.”
6.    Executive Compensation.    See “Management” and “Executive Compensation.”
7.    Certain Relationships and Related Transactions, and Director Independence.    See “Summary,” “Risk Factors,” “Management,” “Certain Relationships and Related Transactions” and “Relationship with Marathon Oil After the Spin-Off.”
8.    Legal Proceedings.    See “Business—Legal Proceedings.”
9.    Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters.    See “Summary,” “Risk Factors,” “The Spin-Off,” “Dividend Policy” and “Description of Capital Stock.”
10.    Recent Sales of Unregistered Securities.    Not Applicable.
11.    Description of Registrant’s Securities to be Registered.    See “Description of Capital Stock.”
12.    Indemnification of Directors and Officers.    See “Indemnification of Directors and Officers.”


Item
No.

  

Item Caption

  

Location in Information Statement

13.    Financial Statements and Supplementary Data.    See “Summary,” “Selected Historical Combined Financial Data,” “Unaudited Pro Forma Condensed Combined Financial Data” and “Index to Combined Financial Statements.”
14.    Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.    Not Applicable.
15.    Financial Statements and Exhibits.   

 

(a) Financial Statements : The following financial statements are included in the information statement and filed as part of this Registration Statement:

Report of Independent Registered Public Accounting Firm

Combined Statements of Income for the years ended December 31, 2010, 2009 and 2008

Combined Balance Sheets as of December 31, 2010 and 2009

Combined Statements of Cash Flows for the years ended December 31, 2010, 2009 and 2008

Combined Statements of Net Investment for the years ended December 31, 2010, 2009 and 2008

Notes to Combined Financial Statements

Supplemental Statistics (unaudited)

 

(b) Exhibits . The following documents are filed as exhibits hereto:

 

 

Exhibit Number

  

Exhibit Description

  2.1*    Form of Separation and Distribution Agreement
  3.1*    Form of Restated Certificate of Incorporation of the Registrant
  3.2*    Form of Amended and Restated By-laws of the Registrant
  4.1   

Indenture dated as of February 1, 2011 between Marathon Petroleum Corporation and The Bank of New York Mellon Trust Company, N.A., as Trustee

  4.2    Form of the terms of the 3½% Senior Notes due 2016, 5  1 / 8 % Senior Notes due 2021 and 6½% Senior Notes due 2041 of Marathon Petroleum Corporation
  4.3    Form of 3½% Senior Notes due 2016, 5  1 / 8 % Senior Notes due 2021 and 6½% Senior Notes due 2041 of Marathon Petroleum Corporation (included in Exhibit 4.2 above)
  4.4    Registration Rights Agreement among Marathon Petroleum Corporation, Marathon Oil Corporation and Morgan Stanley & Co. Incorporated and J.P. Morgan Securities LLC
  4.5    Credit Agreement dated as of March 11, 2011 among Marathon Petroleum Corporation, the lenders party thereto, JPMorgan Chase Bank, National Association, as Administrative Agent, J.P. Morgan Securities LLC and Morgan Stanley Senior Funding, Inc., as Joint Lead Arrangers and Joint Bookrunners, Morgan Stanley Senior Funding, Inc., as Syndication Agent, and Bank of America, N.A., Citigroup Global Markets Inc. and The Royal Bank of Scotland plc, as Co-Documentation Agents
10.1*    Form of Tax Sharing Agreement
10.2*    Form of Employee Matters Agreement
10.3*    Form of Transition Services Agreement
10.4*    Form of Marathon Petroleum Corporation 2011 Incentive Compensation Plan
21.1*    List of Subsidiaries
99.1    Information Statement, Subject to Completion, dated March 29, 2011

 

* To be filed by amendment.


SIGNATURES

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.

Date: March 29, 2011

 

MARATHON PETROLEUM CORPORATION
By:   / S /    G ARY R. H EMINGER
  Gary R. Heminger
  President


EXHIBIT INDEX

 

Exhibit Number

  

Exhibit Description

  2.1*    Form of Separation and Distribution Agreement
  3.1*    Form of Restated Certificate of Incorporation of the Registrant
  3.2*    Form of Amended and Restated By-laws of the Registrant
  4.1   

Indenture dated as of February 1, 2011 between Marathon Petroleum Corporation and The Bank of New York Mellon Trust Company, N.A., as Trustee

  4.2    Form of the terms of the 3½% Senior Notes due 2016, 5  1 / 8 % Senior Notes due 2021 and 6½% Senior Notes due 2041 of Marathon Petroleum Corporation
  4.3    Form of 3½% Senior Notes due 2016, 5  1 / 8 % Senior Notes due 2021 and 6½% Senior Notes due 2041 of Marathon Petroleum Corporation (included in Exhibit 4.2 above)
  4.4    Registration Rights Agreement among Marathon Petroleum Corporation, Marathon Oil Corporation and Morgan Stanley & Co. Incorporated and J.P. Morgan Securities LLC
  4.5    Credit Agreement dated as of March 11, 2011 among Marathon Petroleum Corporation, the lenders party thereto, JPMorgan Chase Bank, National Association, as Administrative Agent, J.P. Morgan Securities LLC and Morgan Stanley Senior Funding, Inc., as Joint Lead Arrangers and Joint Bookrunners, Morgan Stanley Senior Funding, Inc., as Syndication Agent, and Bank of America, N.A., Citigroup Global Markets Inc. and The Royal Bank of Scotland plc, as Co-Documentation Agents
10.1*    Form of Tax Sharing Agreement
10.2*    Form of Employee Matters Agreement
10.3*    Form of Transition Services Agreement
10.4*    Form of Marathon Petroleum Corporation 2011 Incentive Compensation Plan
21.1*    List of Subsidiaries
99.1    Information Statement, Subject to Completion, dated March 29, 2011

 

* To be filed by amendment.

Exhibit 4.1

Execution Version

MARATHON PETROLEUM CORPORATION,

Issuer

and

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

Trustee

INDENTURE

Dated as of February 1, 2011

 

 

Senior Debt Securities

 

 


Reconciliation and Tie between Sections 3.10 through 3.18(a),

Inclusive, of the Trust Indenture Act of 1939

and Sections of this Indenture:

 

Section of

Trust Indenture

Act of 1939

       

Sections of
Indenture

§3.10    (a)(1)      

6.09

   (a)(2)      

6.09

   (a)(3)      

Not Applicable

   (a)(4)      

Not Applicable

   (a)(5)      

6.09

   (b)      

6.08, 6.10

§3.11    (a)      

6.13

   (b)      

6.13

   (c)      

Not Applicable

§3.12    (a)      

7.01, 7.02

   (b)      

7.02

   (c)      

7.02

§3.13    (a)      

7.03

   (b)      

7.03

   (c)      

7.03

   (d)      

7.03

§3.14    (a)      

7.04

   (a)(4)      

1.01, 10.04

   (b)      

Not Applicable

   (c)(1)      

1.02

   (c)(2)      

1.02

   (c)(3)      

Not Applicable

   (d)      

Not Applicable

   (e)      

1.02

§3.15    (a)      

6.01, 6.03

   (b)      

6.02

   (c)      

6.01

   (d)(1)      

6.01

   (d)(2)      

6.01, 6.03

   (d)(3)      

6.01, 6.03

   (e)      

5.14

§3.16    (a)(1)(A)   

5.02, 5.12

   (a)(1)(B)   

5.13

   (a)(2)      

Not Applicable

   (a) (last sentence)   

1.01

   (b)      

5.08

   (c)      

1.04

§3.17    (a)(1)      

5.03

   (a)(2)      

5.04

   (b)      

10.03

§3.18    (a)      

1.07

 

NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.


Table of Contents

 

         Page  
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION      1   

SECTION 1.01

  Definitions      1   

SECTION 1.02

  Compliance Certificates and Opinions      8   

SECTION 1.03

  Form of Documents Delivered to Trustee      8   

SECTION 1.04

  Acts of Holders; Record Dates      9   

SECTION 1.05

  Notices, Etc., to Trustee and Company      10   

SECTION 1.06

  Notice to Holders; Waiver of Notice      10   

SECTION 1.07

  Conflict With Trust Indenture Act      11   

SECTION 1.08

  Effect of Headings and Table of Contents      11   

SECTION 1.09

  Successors      11   

SECTION 1.10

  Separability Clause      11   

SECTION 1.11

  Benefits of Indenture; No Recourse Against Others      11   

SECTION 1.12

  Governing Law      11   

SECTION 1.13

  Legal Holidays      12   

SECTION 1.14

  Force Majeure      12   

SECTION 1.15

  Waiver of Jury Trial      12   
ARTICLE II SECURITY FORMS      12   

SECTION 2.01

  Forms Generally      12   

SECTION 2.02

  Form of Face of Security      13   

SECTION 2.03

  Form of Reverse of Security      15   

SECTION 2.04

  Form of Legend for Global Securities      18   

SECTION 2.05

  Form of Trustee’s Certificate of Authentication      19   
ARTICLE III THE SECURITIES      19   

SECTION 3.01

  Amount Unlimited; Issuable in Series      19   

SECTION 3.02

  Denominations      22   

SECTION 3.03

  Execution, Authentication, Delivery and Dating      22   

SECTION 3.04

  Temporary Securities      23   

SECTION 3.05

  Registration, Registration of Transfer and Exchange; Global Securities      24   

SECTION 3.06

  Mutilated, Destroyed, Lost and Stolen Securities      28   

SECTION 3.07

  Payment of Interest; Interest Rights Preserved      28   

SECTION 3.08

  Persons Deemed Owners      29   

SECTION 3.09

  Cancellation      30   

SECTION 3.10

  Computation of Interest      30   
ARTICLE IV SATISFACTION AND DISCHARGE      30   

SECTION 4.01

  Satisfaction and Discharge of Indenture      30   

SECTION 4.02

  Application of Trust Money      32   

 

i


ARTICLE V REMEDIES      32   

SECTION 5.01

  Events of Default      32   

SECTION 5.02

  Acceleration of Maturity; Rescission and Annulment      34   

SECTION 5.03

  Collection of Indebtedness and Suits for Enforcement by Trustee      35   

SECTION 5.04

  Trustee May File Proofs of Claim      36   

SECTION 5.05

  Trustee May Enforce Claims Without Possession of Securities      36   

SECTION 5.06

  Application of Money Collected      36   

SECTION 5.07

  Limitation on Suits      37   

SECTION 5.08

  Unconditional Right of Holders to Receive Principal, Premium and Interest      38   

SECTION 5.09

  Restoration of Rights and Remedies      38   

SECTION 5.10

  Rights and Remedies Cumulative      38   

SECTION 5.11

  Delay or Omission Not Waiver      38   

SECTION 5.12

  Control by Holders      39   

SECTION 5.13

  Waiver of Past Defaults      39   

SECTION 5.14

  Undertaking for Costs      39   

SECTION 5.15

  Waiver of Usury, Stay or Extension Laws      39   
ARTICLE VI THE TRUSTEE      40   

SECTION 6.01

  Certain Duties and Responsibilities      40   

SECTION 6.02

  Notice of Defaults      40   

SECTION 6.03

  Certain Rights of Trustee      40   

SECTION 6.04

  Not Responsible for Recitals or Issuance of Securities      42   

SECTION 6.05

  May Hold Securities      42   

SECTION 6.06

  Money Held in Trust      42   

SECTION 6.07

  Compensation, Reimbursement and Indemnification      42   

SECTION 6.08

  Conflicting Interests      43   

SECTION 6.09

  Corporate Trustee Required; Eligibility      43   

SECTION 6.10

  Resignation and Removal; Appointment of Successor      44   

SECTION 6.11

  Acceptance of Appointment by Successor      45   

SECTION 6.12

  Merger, Conversion, Consolidation or Succession to Business      46   

SECTION 6.13

  Preferential Collection of Claims Against Company      47   

SECTION 6.14

  Appointment of Authenticating Agent      47   
ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY      49   

SECTION 7.01

  Company to Furnish Trustee Names and Addresses of Holders      49   

SECTION 7.02

  Preservation of Information; Communications to Holders      49   

SECTION 7.03

  Reports by Trustee      49   

SECTION 7.04

  Reports by Company      50   
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE      50   

SECTION 8.01

  Company May Consolidate, Etc., Only on Certain Terms      50   

SECTION 8.02

  Successor Substituted      51   
ARTICLE IX SUPPLEMENTAL INDENTURES      51   

SECTION 9.01

  Supplemental Indentures Without Consent of Holders      51   

SECTION 9.02

  Supplemental Indentures With Consent of Holders      53   

SECTION 9.03

  Execution of Supplemental Indentures      54   

 

ii


SECTION 9.04

  Effect of Supplemental Indentures      54   

SECTION 9.05

  Conformity With Trust Indenture Act      54   

SECTION 9.06

  Reference in Securities to Supplemental Indentures      54   
ARTICLE X COVENANTS      55   

SECTION 10.01

  Payment of Principal, Premium and Interest      55   

SECTION 10.02

  Maintenance of Office or Agency      55   

SECTION 10.03

  Money for Securities Payments to be Held in Trust      55   

SECTION 10.04

  Statement by Officers as to Default      57   

SECTION 10.05

  Mortgage of Certain Property      57   

SECTION 10.06

  Sale and Leaseback of Certain Properties      58   

SECTION 10.07

  Waiver of Certain Covenants      59   
ARTICLE XI REDEMPTION OF SECURITIES      60   

SECTION 11.01

  Applicability of Article      60   

SECTION 11.02

  Election to Redeem; Notice to Trustee      60   

SECTION 11.03

  Selection by Trustee of Securities to be Redeemed      60   

SECTION 11.04

  Notice of Redemption      61   

SECTION 11.05

  Deposit of Redemption Price      62   

SECTION 11.06

  Securities Payable on Redemption Date      62   

SECTION 11.07

  Securities Redeemed in Part      62   

SECTION 11.08

  Purchase of Securities      62   
ARTICLE XII SINKING FUNDS      63   

SECTION 12.01

  Applicability of Article      63   

SECTION 12.02

  Satisfaction of Sinking Fund Payments with Securities      63   

SECTION 12.03

  Redemption of Securities for Sinking Fund      63   
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE      64   

SECTION 13.01

  Company’s Option to Effect Defeasance or Covenant Defeasance      64   

SECTION 13.02

  Defeasance and Discharge      64   

SECTION 13.03

  Covenant Defeasance      65   

SECTION 13.04

  Conditions to Defeasance or Covenant Defeasance      65   

SECTION 13.05

  Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions      67   

SECTION 13.06

  Reinstatement      68   

 

iii


INDENTURE, dated as of February 1, 2011, between MARATHON PETROLEUM CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”), having its principal office at 539 South Main Street, Findlay, Ohio 45840-3229, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee (herein called the “Trustee”).

RECITALS OF THE COMPANY

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.

All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

ARTICLE I

DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION

SECTION 1.01 Definitions .

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

  (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

  (2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

 

  (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America, and, except as otherwise expressly provided herein, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date of such computation;

 

  (4) unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture; and

 

1


  (5) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture.

“Act,” when used with respect to any Holder, has the meaning specified in Section 1.04.

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.

“Board of Directors” means the board of directors or comparable governing body of the Company or any duly authorized committee thereof.

“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“Business Day,” when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.

“Commission” means the Securities and Exchange Commission.

“Company” means Marathon Petroleum Corporation until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean that successor corporation.

“Company Request” or “Company Order” means a written request or order signed in the name of the Company by any two of its Chairman of the Board, any Vice Chairman of the Board, its Chief Executive Officer, its President, its Chief Operating Officer, its Chief Financial Officer, any Vice President, its Treasurer, any Assistant Treasurer, its Comptroller, any Assistant Comptroller, its Secretary or any Assistant Secretary, and delivered to the Trustee.

“Consolidated Net Tangible Assets” means the aggregate value of all assets of the Company and its Subsidiaries after deducting therefrom (i) all current liabilities (excluding all long-term debt due within one year), (ii) all investments in unconsolidated subsidiaries and all investments accounted for on the equity basis, and (iii) all goodwill, patents and trademarks, unamortized debt discounts and other similar intangibles (all determined in conformity with generally accepted accounting principles and calculated on a basis consistent with the Company’s most recent audited consolidated financial statements).

 

2


“Corporate Trust Office” means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which at the date of original execution of this Indenture is located at The Bank of New York Mellon Trust Company, N.A., 601 Travis Street, 16th Floor, Houston, Texas 77002, Attention: Corporate Trust Administration, except that, with respect to presentation of securities for payment or registration of transfers or exchanges, such term means the office or agency of the Trustee located at The Bank of New York Mellon, 101 Barclay, 7 East, New York, New York 10286, Attention: Corporate Trust.

“corporation” includes associations, corporations, companies, limited liability companies and business trusts.

“Covenant Defeasance” has the meaning specified in Section 13.03.

“Defaulted Interest” has the meaning specified in Section 3.07.

“Defeasance” has the meaning specified in Section 13.02.

“Depositary” means, with respect to Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 3.01.

“Dollar” means the coin or currency of the United States as at the time of payment is legal tender for the payment of public and private debts.

“Establishment Action” shall mean

 

  (i) a Board Resolution establishing one or more series of Securities and authorizing the issuance of any Security or

 

  (ii) a resolution or action by an officer or employee of the Company, establishing one or more series of Securities and/or authorizing the issuance of any Security, in each case, pursuant to a Board Resolution.

“Event of Default” has the meaning specified in Section 5.01.

“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.

“Foreign Currency” means a currency of the government, or governments, of any country, or countries, other than the United States of America.

“Foreign Government Obligations” means, with respect to the Securities of any series that are denominated in a Foreign Currency, securities that are

 

3


  (i) direct obligations of the government, or governments, that issued or caused to be issued such currency for the payment of which obligations its, or their, full faith and credit is pledged or

 

  (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of such government, or governments, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, or governments,

which, in either case under clause (i) or (ii), are not callable or redeemable at the option of the issuer thereof.

“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 2.04 (or such legend as may be specified as contemplated by Section 3.01 for such Securities).

“Government Obligations” means U.S. Government Obligations and Foreign Government Obligations.

“Holder” means a Person in whose name a Security is registered in the Security Register.

“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended pursuant to the provisions hereof, and includes the terms of a particular series of Securities established as contemplated by Section 3.01.

“interest,” when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.

“Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

“Maturity,” when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.

“Mortgage” means, as the context may require, (i) to mortgage, pledge, encumber or subject to a lien or (ii) a mortgage, pledge, encumbrance or lien.

“Notice of Default” means a written notice of the kind specified in Section 5.01(4).

“Officers’ Certificate” means a certificate signed by any two of the Chairman of the Board, any Vice Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, any Vice President, the Treasurer, any Assistant Treasurer, the Comptroller, any Assistant Comptroller, the Secretary or any Assistant Secretary of the Company, and delivered to the Trustee.

 

4


“Opinion of Counsel” means a written opinion of counsel, who may be an employee of, or counsel to, the Company, and who shall be reasonably acceptable to the Trustee.

“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.

“Outstanding,” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

  (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

  (ii) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

 

  (iii) Securities as to which Defeasance has been effected pursuant to Section 13.02; and

 

  (iv) Securities which have been paid pursuant to Section 3.06 or issued in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;

provided , however , that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date:

 

  (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date of such determination upon acceleration of the Maturity thereof to such date pursuant to Section 5.02;

 

  (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01;

 

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  (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.01, of the principal amount of such Security (or, in the case of a Security described in clause (A) or (B) above, of the amount determined as provided in such clause); and

 

  (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which the Trustee knows to be so owned shall be so disregarded.

Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.

“Paying Agent” means the Company or any Person authorized by the Company to pay the principal of and/or any premium or interest on any Securities on behalf of the Company.

“Person” means any individual, association, corporation, partnership, joint venture, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Place of Payment,” when used with respect to the Securities of any series, means the place or places where the principal of and/or any premium or interest on the Securities of that series are payable as specified as contemplated by Section 3.01(6).

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

“Redemption Date,” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.

“Redemption Price,” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.

“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.01.

 

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“Responsible Officer,” when used with respect to the Trustee, means an officer in the corporate trust department of the Trustee having direct responsibility for administration of this Indenture.

“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.

“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.

“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.05.

“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.

“Stated Maturity,” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

“Subsidiary” means a Person more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries.

“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided , however , that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.

“United States” means the United States of America (including the states and the District of Columbia) and its possessions at the relevant date. As of the date of this Indenture, the possessions of the United States include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.

“U.S. Government Obligation” has the meaning specified in Section 13.04.

“Vice President,” when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”

 

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“Voting Power” means the total voting power represented by all outstanding shares of all classes of Voting Stock.

“Voting Stock” means a Person’s stock of any class or classes (however designated), including membership interests, membership shares or other similar equity interests, having ordinary Voting Power for the election of the directors or members of a similar governing body of such Person, other than stock having such power only by reason of the happening of a contingency.

SECTION 1.02 Compliance Certificates and Opinions .

Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 10.04) shall include:

 

  (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

  (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

  (3) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

  (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

SECTION 1.03 Form of Documents Delivered to Trustee .

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or

 

8


representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

SECTION 1.04 Acts of Holders; Record Dates .

Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is herein expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.

The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

The ownership of Securities shall be proved by the Security Register.

Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. With respect to any amendment or supplement hereof or waiver hereunder, any such Holder or subsequent Holder may revoke the consent, waiver or other Act delivered with respect thereto as to his or her Security or portion of a Security if the Trustee receives written notice of revocation before a date and time therefor identified by the Company in a notice furnished to such Holder in accordance with the terms of this Indenture or, if no such date and time shall be identified, the date such amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

 

9


The Company may, in the circumstances permitted by the Trust Indenture Act, fix any day as the record date for the purpose of determining the Holders of Securities entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Holders of Securities. If not set by the Company prior to the first solicitation of a Holder of Securities made by any Person other than the Company in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided) prior to such first solicitation or vote, as the case may be. With regard to any record date, only the Holders of Securities on such date (or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action.

SECTION 1.05 Notices, Etc., to Trustee and Company .

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

  (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with and received by the Trustee at its Corporate Trust Office, or

 

  (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to: the address last furnished in writing to the Trustee by the Company, or, if no such address has been furnished, Treasurer, Marathon Petroleum Corporation, 539 South Main Street, Findlay, Ohio 45840-3229.

SECTION 1.06 Notice to Holders; Waiver of Notice .

Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

 

10


SECTION 1.07 Conflict With Trust Indenture Act .

If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

SECTION 1.08 Effect of Headings and Table of Contents .

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

SECTION 1.09 Successors .

All covenants and agreements in this Indenture by the Company shall bind its successors, whether so expressed or not.

SECTION 1.10 Separability Clause .

In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 1.11 Benefits of Indenture; No Recourse Against Others .

Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. A director, officer, employee, stockholder, partner or other owner of the Company or the Trustee, as such, shall not have any liability for any obligations of the Company under the Securities or for any obligations of the Company or the Trustee under this Indenture or for any claim based on, in respect of or by reason of those obligations or their creation. Each Holder by accepting a Security waives and releases all that liability. The waiver and release shall be part of the consideration for the issue of Securities.

SECTION 1.12 Governing Law .

This Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New York, without giving effect to any principles of conflicts of laws thereunder to the extent the application of the laws of another jurisdiction would be required thereby.

 

11


SECTION 1.13 Legal Holidays .

In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no interest with respect to such payment shall accrue for the intervening period.

SECTION 1.14 Force Majeure .

In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of third-party utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

SECTION 1.15 Waiver of Jury Trial .

EACH PARTY HERETO HEREBY WAIVES, AND EACH HOLDER BY ACCEPTANCE OF ITS SECURITIES SHALL BE DEEMED TO HAVE WAIVED, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.

ARTICLE II

SECURITY FORMS

SECTION 2.01 Forms Generally .

The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by an Establishment Action or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company or by an Officers’ Certificate and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.

 

12


The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.

SECTION 2.02 Form of Face of Security .

[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]

[Insert Global Security legend, if applicable]

MARATHON PETROLEUM CORPORATION

[Insert title of the Series]

 

No.                     

   $                     

MARATHON PETROLEUM CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to                      , or registered assigns, the principal sum of                      Dollars [if the Security is a Global Security, insert — , or such greater or lesser amount as indicated on the Schedule of Exchanges of Securities attached hereto,] on                      [if the Security is to bear interest prior to Maturity, insert — , and to pay interest thereon from                      or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on                      and                      in each year, commencing                      , at the rate of          % per annum, until the principal hereof is paid or made available for payment [if applicable, insert — , provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of          % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the                      or                      (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].

 

13


[If the Security is not to bear interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of          % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. [Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of          % per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]]

Payment of the principal of (and premium, if any) and [if applicable, insert — any such] interest on this Security will be made at the office or agency of the Company maintained for that purpose in                      , in such [coin or currency of the United States of America] [Foreign Currency, consistent with the provisions below,] as at the time of payment is legal tender for payment of public and private debts [if applicable, insert — ; provided , however , that (1) payments on any Global Security shall be made by electronic (same-day) funds transfer to the Depositary and (2) at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or by electronic funds transfer to an account maintained by the Person entitled thereto as specified in the Security Register, provided that such Person shall have given the Trustee written instructions].

[If the security is payable in a foreign currency, insert the appropriate provision.]

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

Dated:                       .

 

MARATHON PETROLEUM CORPORATION
By  

 

Attest:

 

 

 

14


SECTION 2.03 Form of Reverse of Security .

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of February 1, 2011 (herein called the “Indenture,” which term shall have the meaning assigned to it in such instrument), between the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert — , limited in aggregate principal amount to $          ].

[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail, [if applicable, insert — (1) on                      in any year commencing with the year              and ending with the year              through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after                      , 20          ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert — on or before                      ,          %, and if redeemed] during the 12-month period beginning                      of the years indicated,

 

Year

  

Redemption
Price

  

Year

  

Redemption
Price

        
        
        
        
        

and thereafter at a Redemption Price equal to          % of the principal amount, together in the case of any such redemption [if applicable, insert — (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]

[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail, (1) on                      in any year commencing with the year              and ending with the year              through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after              ], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning                      of the years indicated,

 

Year

  

Redemption Price
for Redemption Through
Operation of the Sinking Fund

  

Redemption Price
for Redemption Otherwise
Than Through Operation
of the Sinking Fund

     
     
     
     
     

 

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and thereafter at a Redemption Price equal to          % of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Regular Record Dates or Special Record Dates referred to on the face hereof, all as provided in the Indenture.]

[If applicable, insert — The sinking fund for this series provides for the redemption on                      in each year beginning with the year              and ending with the year              of [if applicable, insert — not less than $          (“mandatory sinking fund”) and not more than] $          aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if applicable, insert — mandatory] sinking fund payments may be credited against subsequent [if applicable, insert — mandatory] sinking fund payments otherwise required to be made [if applicable, insert — , in the inverse order in which they become due].]

[If the Security is subject to redemption of any kind, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]

[If applicable, insert — The Indenture contains provisions for defeasance at any time of [the entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default with respect to this Security] [, in each case] upon compliance with certain conditions set forth in the Indenture.]

[If the Security is an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to — insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]

 

16


[If applicable, insert a paragraph regarding the indexing of the Security.]

The Indenture contains provisions permitting the Company and the Trustee to modify the Indenture or any supplemental indenture without the consent of the Holders for one or more of the following purposes: (1) to evidence the succession of another corporation to the Company; (2) to add to the covenants of the Company; (3) to add additional events of default for the benefit of Holders of all or any series of Securities; (4) to add to or change provisions of the Indenture to allow for the issuance of Securities in other forms; (5) to add to, change or eliminate any of the provisions of the Indenture in respect of one or more series of Securities thereunder, under certain conditions specified therein; (6) to secure the Securities pursuant to the requirements of Section 10.05 of the Indenture or otherwise; (7) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01 of the Indenture; (8) to evidence the appointment of a successor Trustee; and (9) to cure any ambiguity, to correct or supplement any provision of the Indenture which may be defective or inconsistent with any other provision of the Indenture, or to make any other provisions with respect to matters or questions arising under the Indenture as shall not adversely affect the interests of the Holders in any material respect.

The Indenture also permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

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No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities of this series are issuable only in registered form without coupons in denominations of $          and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any such registration of transfer or exchange, but, subject to any applicable provisions of the Indenture, the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

SECTION 2.04 Form of Legend for Global Securities .

Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:

This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for a Security registered, and no transfer of this Security in whole or in part may be registered, in the name of any Person other than such Depositary or a nominee thereof, except in the limited circumstances described in the Indenture.

 

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SECTION 2.05 Form of Trustee’s Certificate of Authentication.

The Trustee’s certificates of authentication shall be in substantially the following form:

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

Dated:

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., As Trustee
By  

 

  Authorized Signatory

ARTICLE III

THE SECURITIES

SECTION 3.01 Amount Unlimited; Issuable in Series.

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

The Securities may be issued from time to time in one or more series. The terms of each series of Securities shall, prior to the issuance of Securities of such series, be either:

 

  (i) established in an Establishment Action; or

 

  (ii) established in one or more indentures supplemental hereto.

Such Establishment Action or supplemental indenture shall provide:

 

  (1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series) and a statement that the Securities will be offered pursuant to this Indenture;

 

  (2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);

 

  (3) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;

 

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  (4) the date or dates on which the principal of any Securities of the series is payable;

 

  (5) the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;

 

  (6) the place or places where the principal of and/or any premium or interest on any Securities of the series shall be payable;

 

  (7) the period or periods within which, the price or prices at which, the currency or currencies (including currency units) in which and the other terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;

 

  (8) the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;

 

  (9) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable;

 

  (10) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to any commodities, currencies or indices, values, rates or prices or any other index or formula, the manner in which such amounts shall be determined;

 

  (11) if other than Dollars, the currency, currencies or currency units, or the form, including equity securities, other debt securities (including Securities), warrants or any other securities or property of the Company or any other Person, in which the principal of or any premium or interest on any Securities of the series shall be payable and, if in a currency, currencies or currency unit other than Dollars, the manner of determining the equivalent thereof in Dollars for any purpose, including for purposes of the definition of “Outstanding” in Section 1.01;

 

  (12) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);

 

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  (13) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02;

 

  (14) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);

 

  (15) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 13.02 or Section 13.03 or both such Sections (or, if defeasible by another method, such other method) and, if other than by an action pursuant to a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;

 

  (16) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.04 and any circumstances in addition to or in lieu of those set forth in clause (2) of the last paragraph of Section 3.05 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;

 

  (17) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02;

 

  (18) any addition to or change in the covenants set forth in Article X which applies to Securities of the series;

 

  (19) any restrictions or other provisions with respect to the transfer or exchange of Securities of the series, which may amend, supplement, modify or supersede those contained in this Article III;

 

  (20) if the Securities of the series are to be convertible into or exchangeable for capital stock, other debt securities (including Securities), warrants, other equity securities or any other securities or property of the Company or any other Person, at the option of the Company or the Holder or upon the occurrence of any condition or event, the terms and conditions for such conversion or exchange; and

 

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  (21) any other terms of the series (which terms shall not be prohibited by the provisions of this Indenture, except as permitted by Section 9.01(5)).

All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in the Establishment Action referred to above or in any indenture supplemental hereto. The Company shall provide to the Trustee a copy of any such Establishment Action.

SECTION 3.02 Denominations.

The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 3.01. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.

SECTION 3.03 Execution, Authentication, Delivery and Dating.

The Securities shall be executed on behalf of the Company by its Chairman of the Board, any Vice Chairman of the Board, its Chief Executive Officer, its President or one of its Vice Presidents, and attested by its Treasurer or an Assistant Treasurer or its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.

Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established by one or more Establishment Actions as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating:

 

  (1) if the form of such Securities has been established by an Establishment Action as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;

 

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  (2) if the terms of such Securities have been established by an Establishment Action as permitted by Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; and

 

  (3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent conveyance or transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Establishment Action otherwise required pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

Each Security shall be dated the date of its authentication.

No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

SECTION 3.04 Temporary Securities.

Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.

 

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If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.

SECTION 3.05 Registration, Registration of Transfer and Exchange; Global Securities.

The Company shall cause to be kept in an office or agency of the Company in a Place of Payment a register (the register maintained in any such office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee, or any other party serving in such capacity with the Trustee’s consent, is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.

Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.

At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.

 

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If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.

The provisions of the following clauses shall apply only to Global Securities:

 

  (1) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.

 

  (2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless:

 

  (A) such Depositary

 

  (i) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or

 

  (ii) has ceased to be a clearing agency registered under the Exchange Act,

and, in either case, a successor Depositary is not appointed by the Company within 90 days of such notice or event;

 

  (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security and the Security Registrar has received a request from the Depositary to issue Securities in lieu of all or a portion of the Global Security (in which case the Company shall deliver Securities within 30 days of such request);

 

  (C) the Company determines not to have the Securities represented by a Global Security; or

 

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  (D) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.01.

 

  (3) Subject to clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.

 

  (4) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.

 

  (5) Any Global Security shall represent such of the outstanding Securities of the applicable series as shall be specified therein and may provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, transfers or redemptions. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of outstanding Securities represented thereby shall be made by the Trustee (i) in such manner and upon instructions given by such Person or Persons as shall be specified in such Security or in a Company Order to be delivered to the Trustee pursuant to Section 3.03 or (ii) otherwise in accordance with written instructions or such other written form of instructions as is customary for the Depositary for such Security, from such Depositary or its nominee on behalf of any Person having a beneficial interest in such Global Security. Subject to the provisions of Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified in such Security or in the applicable Company Order. With respect to the Securities of any series that are represented by a Global Security, the Company authorizes the execution and delivery by the Trustee of a letter of representations or other similar agreement or instrument in the form customarily provided for by the Depositary appointed with respect to such Global Security. Any Global Security may be deposited with the Depositary or its nominee, or may remain in the custody of the Trustee or the Security Custodian therefor pursuant to a FAST Balance Certificate Agreement or similar agreement between the Trustee and the Depositary. If a Company Order has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel.

 

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  (6) Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee or the Security Custodian as its custodian, or under such Global Security, and the Depositary may be treated by the Company, the Trustee or the Security Custodian and any agent of the Company, the Trustee or the Security Custodian as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, (i) the registered holder of a Global Security of a series may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder of Securities of such series is entitled to take under this Indenture or the Securities of such series and (ii) nothing herein shall prevent the Company, the Trustee or the Security Custodian, or any agent of the Company, the Trustee or the Security Custodian, from giving effect to any written certification, proxy or other authorization furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Security.

 

  (7) Neither the Company nor the Trustee will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, Securities by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to such Securities. Neither the Company nor the Trustee shall be liable for any delay by the related Global Security Holder or the Depositary in identifying the beneficial owners, and each such Person may conclusively rely on, and shall be protected in relying on, instructions from such Global Security Holder or the Depositary for all purposes (including with respect to the registration and delivery, and the respective principal amounts, of the Securities to be issued).

 

  (8) Notwithstanding the provisions of Section 3.07, unless otherwise specified as contemplated by Section 2.01, payment of principal of and any premium and interest on any Global Security shall be made to the Depositary.

 

  (9) The Company in issuing Securities of any series may use CUSIP numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders of Securities of such series; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities of such series or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities of such series, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the CUSIP numbers.

 

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SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities.

If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

SECTION 3.07 Payment of Interest; Interest Rights Preserved.

Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.

 

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Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:

 

  (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon, the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 1.06, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

 

  (2) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

SECTION 3.08 Persons Deemed Owners.

Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 3.07) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

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SECTION 3.09 Cancellation .

All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. Until directed otherwise by a Company Order, all cancelled Securities held by the Trustee shall be conspicuously marked as such and thereafter treated in accordance with the Trustee’s document retention policies; provided , however , if any cancelled Security is destroyed by the Trustee, the Trustee shall deliver to the Company a certificate with respect to such destruction.

SECTION 3.10 Computation of Interest .

Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

ARTICLE IV

SATISFACTION AND DISCHARGE

SECTION 4.01 Satisfaction and Discharge of Indenture.

This Indenture shall upon Company Request cease to be of further effect with respect to any (or all) series of Securities (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when:

 

  (1) either

 

  (A) all such Securities theretofore authenticated and delivered (other than

 

  (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and

 

  (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03)have been delivered to the Trustee for cancellation; or

 

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  (B) all such Securities not theretofore delivered to the Trustee for cancellation

 

  (i) have become due and payable, or

 

  (ii) will become due and payable at their Stated Maturity within one year, or

 

  (iii) are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose (x) money in an amount (in such currency, currencies or currency unit or units in which the Securities of such series are payable), or (y) in the case of Securities denominated in Dollars, U.S. Government Obligations, or, in the case of Securities denominated in a Foreign Currency, Foreign Government Obligations, with respect to such Securities, maturing as to principal and interest at such times and in such amounts as will ensure the availability of money in the currency in which payment of such Securities is to be made in an amount or (z) a combination thereof, which will be sufficient, in the opinion (in the case of clauses (y) and (z)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; or

 

  (C) the Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 3.01, to be applicable to such Securities;

 

  (2) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to such Securities; and

 

  (3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and, if money or Government Obligations shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 4.02, Article VI and the last paragraph of Section 10.03 shall survive.

 

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SECTION 4.02 Application of Trust Money .

Subject to the provisions of the last paragraph of Section 10.03, all money and Government Obligations deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.

ARTICLE V

REMEDIES

SECTION 5.01 Events of Default .

“Event of Default,” wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

  (1) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or

 

  (2) default in the payment of the principal of or any premium on any Security of that series at its Maturity; or

 

  (3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series; or

 

  (4) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

  (5) the entry by a court having jurisdiction in the premises of a decree or order under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law:

 

  (A) for relief in respect of the Company in an involuntary case or proceeding;

 

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  (B) adjudging the Company as bankrupt or insolvent or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company;

 

  (C) appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property; or

 

  (D) ordering the winding up or liquidation of its affairs;

and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;

or

 

(6)    (A)   the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law to be adjudicated a bankrupt or insolvent;

 

  (B) the consent by the Company to the entry of a decree or order for relief in respect of it in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or the consent by it to the commencement of any bankruptcy or insolvency case or proceeding against it;

 

  (C) the filing by the Company of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or the consent by the Company to the filing of such petition;

 

  (D) the consent by the Company to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law; or

 

  (E) the making by the Company of an assignment for the benefit of creditors under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law;

or

 

  (7) any other Event of Default provided with respect to Securities of that series.

When a Default or Event of Default is cured, it ceases.

 

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Notwithstanding the foregoing provisions of this Section 5.01, if the principal of or any premium or interest on any Security is payable in a currency or currencies other than Dollars and such currency or currencies are not available to the Company for making payment thereof due to the imposition of exchange controls or other circumstances beyond the control of the Company (a “Conversion Event”), the Company will be entitled to satisfy its obligations to Holders of the Securities by making such payment in Dollars in an amount equal to the Dollar equivalent of the amount payable in such other currency, as determined by the Company by reference to the noon buying rate in The City of New York for cable transfers for such currency, as such rate is certified for customs purposes by the Federal Reserve Bank of New York (the “Exchange Rate”), on the date of such payment, or, if such rate is not then available, on the basis of the most recently available Exchange Rate. Notwithstanding the foregoing provisions of this Section 5.01, any payment made under such circumstances in Dollars where the required payment is in a currency other than Dollars will not constitute an Event of Default under this Indenture.

Promptly after the occurrence of a Conversion Event, the Company shall give written notice thereof to the Trustee; and the Trustee, promptly after receipt of such notice, shall give notice thereof in the manner provided in Section 1.06 to the Holders. Promptly after the making of any payment in Dollars as a result of a Conversion Event, the Company shall give notice in the manner provided in Section 1.06 to the Holders, setting forth the applicable Exchange Rate and describing the calculation of such payments.

SECTION 5.02 Acceleration of Maturity; Rescission and Annulment.

If an Event of Default (other than an Event of Default specified in Section 5.01(5) or 5.01(6)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 5.01(5) or 5.01(6) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.

At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:

 

  (1) the Company has paid or deposited with the Trustee a sum sufficient to pay

 

  (A) all overdue interest on all Securities of that series,

 

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  (B) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,

 

  (C) to the extent that payment of such interest is lawful, any interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and

 

  (D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;

and

 

  (2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.

No such rescission shall affect any subsequent default or impair any right consequent thereon.

SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee .

The Company covenants that if

 

  (1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or

 

  (2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,

the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates (or yield to maturity in the case of Original Issue Discount Securities) prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, except as a result of the Trustee’s negligence or bad faith.

If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

 

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SECTION 5.04 Trustee May File Proofs of Claim.

In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07 except as a result of its negligence or bad faith.

No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided , however , that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.

SECTION 5.05 Trustee May Enforce Claims Without Possession of Securities .

All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel (except no such provision shall be made respecting compensation, expenses, disbursements and advances made as a result of Trustee’s negligence), be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

SECTION 5.06 Application of Money Collected .

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

FIRST: To the payment of all amounts due the Trustee under Section 6.07.

 

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SECOND: In case the principal of the outstanding Securities of any series in respect of which such moneys have been collected shall not have become due, to the payment of interest on the Securities of such series, in the order of maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate or the yield to maturity (in the case of Original Issue Discount Securities) specified on the Securities of such series, such payments to be made ratably to the persons entitled thereto, without discrimination or preference.

THIRD: In case the principal of the outstanding Securities of any series in respect of which such moneys have been collected shall have become due, by declaration, or otherwise, to the payment of the whole amount then owing and unpaid upon the Securities of such series for principal, premium (if any) and interest, with interest upon the overdue principal, premium (if any) and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the same rate or the yield to maturity (in the case of Original Issue Discount Securities) specified on the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal, premium (if any) and interest, without preference or priority of principal and premium (if any), or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest.

SECTION 5.07 Limitation on Suits .

No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

 

  (1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;

 

  (2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

  (3) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;

 

  (4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

  (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;

 

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it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.

SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest .

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.07) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

SECTION 5.09 Restoration of Rights and Remedies .

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

SECTION 5.10 Rights and Remedies Cumulative .

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by applicable law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

SECTION 5.11 Delay or Omission Not Waiver .

No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

 

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SECTION 5.12 Control by Holders .

The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that:

 

  (1) such direction shall not be in conflict with any applicable rule of law or with this Indenture;

 

  (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and

 

  (3) Subject to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall determine that the proceeding so directed would involve the Trustee in personal liability.

SECTION 5.13 Waiver of Past Defaults .

The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default:

 

  (1) in the payment of the principal of or any premium or interest on any Security of such series; or

 

  (2) in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

SECTION 5.14 Undertaking for Costs .

In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs, including reasonable attorneys’ fees and expenses, against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or the Trustee.

SECTION 5.15 Waiver of Usury, Stay or Extension Laws .

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of,

 

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any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

ARTICLE VI

THE TRUSTEE

SECTION 6.01 Certain Duties and Responsibilities .

The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. The Trustee need perform only those duties as are specifically set forth in this Indenture and the Trust Indenture Act, and no covenants or obligations shall be implied in or read into this Indenture against the Trustee. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

SECTION 6.02 Notice of Defaults .

If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act; provided , however , that in the case of any default of the character specified in Section 5.01(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section, the term “default” means any event or events, as the case may be, specified in Section 5.01, not including periods of grace, if any, provided for therein.

SECTION 6.03 Certain Rights of Trustee.

Subject to the provisions of Section 6.01:

 

  (1) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, action, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

  (2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors or Establishment Action shall be sufficiently evidenced by a Board Resolution or Establishment Action, as the case may be;

 

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  (3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate;

 

  (4) the Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

  (5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

  (6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, action, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;

 

  (7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

 

  (8) the Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

  (9) the Trustee is not required to take notice or deemed to have notice of any default or Event of Default hereunder, except any Event of Default under Section 5.01(1), (2) or (3), unless a Responsible Officer of the Trustee has actual knowledge thereof or has received notice in writing of such default or Event of Default from the Company or the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of the applicable series, and, in the absence of any such notice, the Trustee may conclusively assume that no such default or Event of Default exists; and

 

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  (10) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.

SECTION 6.04 Not Responsible for Recitals or Issuance of Securities .

The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.

SECTION 6.05 May Hold Securities .

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

SECTION 6.06 Money Held in Trust .

Money held by the Trustee, or any Paying Agent, in trust hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any Paying Agent shall be under any liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.

SECTION 6.07 Compensation, Reimbursement and Indemnification .

The Company agrees:

 

  (1) to pay to the Trustee from time to time reasonable compensation as shall be agreed in writing between the Company and the Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

 

  (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

 

  (3) to indemnify the Trustee (including its officers, directors, agents and employees) for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder and the costs and expenses of enforcing this right to indemnification.

 

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In the event any action, suit or proceeding is brought against any Trustee in connection with any claim for which it is entitled to indemnity hereunder, it shall promptly notify the Company in writing, enclosing a copy of all papers served. Failure or delay by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder, except to the extent the Company shall not have been prejudiced as a result of such failure or delay. All counsel employed to defend any such claim shall be retained directly by the Company and may serve as counsel to the Company and/or one or more Trustees. Absent a conflict of interest, the Company shall not be required to pay the fees and expenses of more than one law firm in connection with its obligations hereunder. A Trustee entitled to indemnification may, in addition to counsel engaged by the Company, engage counsel to represent such Trustee at its sole expense. Notwithstanding any other provision of this Indenture, the Company shall not be liable to pay any settlement agreed to without its written consent.

In the event the Trustee incurs expenses or renders services in any proceedings which result from the occurrence or continuance of an Event of Default under Section 5.01(5) or 5.01(6) hereof, or from the occurrence of any event which, solely by virtue of the passage of time, would become such an Event of Default, the expenses so incurred (including the reasonable charges and expenses of its counsel) and compensation for services so rendered are intended to constitute expenses of administration under the United States Bankruptcy Code or equivalent law.

The provisions of this Section shall survive the termination of this Indenture.

SECTION 6.08 Conflicting Interests .

If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.

SECTION 6.09 Corporate Trustee Required; Eligibility .

There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has, or is a subsidiary of a bank or bank holding company that has, a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effects hereinafter specified in this Article.

 

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SECTION 6.10 Resignation and Removal; Appointment of Successor .

(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.

(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(d) If, at any time,

 

  (1) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

  (2) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or

 

  (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

then, in any such case,

 

  (A) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or

 

  (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

 

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(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

SECTION 6.11 Acceptance of Appointment by Successor .

In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which

 

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(i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and, upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.

No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business .

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

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SECTION 6.13 Preferential Collection of Claims Against Company .

If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

SECTION 6.14 Appointment of Authenticating Agent .

The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent must be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having, or being a subsidiary of a bank or bank holding company having, a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

In case at the time such successor to any Authenticating Agent with respect to any series shall succeed to such Authenticating Agent, any of the Securities of such series shall have been authenticated but not delivered, any such successor to such Authenticating Agent may adopt the certificate of authentication of any predecessor Authenticating Agent and deliver such Securities so authenticated; and in case at that time any of the Securities of such series shall not have been authenticated, any successor to any Authenticating Agent may authenticate such Securities either in the name of any predecessor hereunder or in the name of successor Authenticating Agent; and in all such cases such certificate shall have the full force which it is anywhere in the Securities of such series or in this Indenture provided that the certificate of the predecessor Authenticating

 

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Agent shall have; provided , however , that the right to adopt the certificate of authentication of any predecessor Authenticating Agent or to authenticate Securities in the name of any predecessor Authenticating Agent shall apply only to its successor or successors by merger, conversion or consolidation.

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which must be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

Any Authenticating Agent by the acceptance of its appointment shall be deemed to have agreed with the Trustee that: it will perform and carry out the duties of an Authenticating Agent as herein set forth; it will keep and maintain and furnish to the Trustee from time to time as requested by the Trustee appropriate records of all transactions carried out by it as Authenticating Agent and will furnish the Trustee such other information and reports as the Trustee may reasonably require; it is eligible for appointment as Authenticating Agent under this Section 6.14 and will notify the Trustee promptly if it shall cease to be so qualified; and it will indemnify the Trustee against any loss, liability or expense incurred by the Trustee and will defend any claim asserted against the Trustee by reason of acts or failures to act of the Authenticating Agent but it shall have no liability for any action taken by it at the specific written direction of the Trustee.

The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 6.07.

If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
As Trustee
By   [Name of Authenticating Agent]
  As Authenticating Agent
By  

 

  Authorized Signatory

 

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ARTICLE VII

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

SECTION 7.01 Company to Furnish Trustee Names and Addresses of Holders .

 

  The Company will furnish or cause to be furnished to the Trustee:

 

  (1) semi-annually, not later than June 30 and December 31 in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of a date no more than 15 days prior to the date such list is furnished; and

 

  (2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;

excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.

SECTION 7.02 Preservation of Information; Communications to Holders .

The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee, or its designee, in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.

The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.

Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.

SECTION 7.03 Reports by Trustee .

The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.

 

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Reports so required to be transmitted at stated intervals of not more than 12 months shall be transmitted no later than sixty days after each May 15 following the date of first issuance.

A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. (The Company will notify the Trustee when any Securities are listed on any stock exchange pursuant to Section 7.04.)

SECTION 7.04 Reports by Company .

The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so filed with the Commission.

The Company shall notify the Trustee when any Securities are listed on any stock exchange.

ARTICLE VIII

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

SECTION 8.01 Company May Consolidate, Etc., Only on Certain Terms .

The Company covenants that it will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, except that the Company may merge or consolidate with, or sell or convey all or substantially all of its assets to, any other Person, provided that:

 

(1)    (A)    the Company shall be the continuing Person or:
   (B)    (i)    the successor Person (if other than the Company) shall be a Person organized and existing under the laws of the United States of America or a state thereof; and
      (ii)    such Person shall expressly assume the due and punctual payment of the principal of and any premium and interest on all the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company;
   and      
(2)    the Company or such successor Person, as the case may be, shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition and no event which with the lapse of time, the giving of notice or both would constitute an Event of Default shall have occurred and be continuing.

 

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For purposes of this Section 8.01, “substantially all of its assets” shall mean, at any date, a portion of the non-current assets reflected in the Company’s consolidated balance sheet as of the end of the most recent quarterly period that represents at least sixty-six and two-thirds percent (66  2 / 3 %) of the total reported value of such assets.

SECTION 8.02 Successor Substituted .

In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person of the obligations under this Indenture and the Securities in accordance with Section 8.01, such successor Person shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as a party hereto, and the Company shall thereupon be relieved of any further obligations or liabilities hereunder and upon the Securities and the Company as the predecessor Person may thereupon or at any time thereafter be dissolved, wound-up or liquidated. Such successor Person thereupon may cause to be signed, and may issue either in its own name or in the name of the predecessor Person, any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee and, upon the order of such successor Person, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication and any Securities which such successor Person thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof.

In case of any such consolidation, merger, sale or conveyance, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.

ARTICLE IX

SUPPLEMENTAL INDENTURES

SECTION 9.01 Supplemental Indentures Without Consent of Holders .

Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for one or more of the following purposes:

 

  (1) to evidence the succession of another Person to the Company in accordance with Article VIII and the assumption by any such successor of the covenants of the Company herein and in the Securities; or

 

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  (2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or

 

  (3) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or

 

  (4) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or

 

  (5) to add to, change or eliminate any of the provisions of this Indenture; provided that any such addition, change or elimination shall become effective only when there is no outstanding Security of any series created prior to the execution of such amendment or supplemental indenture that is adversely affected in any material respect by such addition, change or elimination;

 

  (6) to secure the Securities pursuant to the requirements of Section 10.05 or to otherwise provide any security for, or add any guarantees of or additional obligors on, the Securities of any series; or

 

  (7) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01; or

 

  (8) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities in accordance with Article IV or Article XIII; provided, however, that any such action shall not adversely affect the interest of the Holders of Securities of such series or any other series of Securities in any material respect;

 

  (9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or

 

  (10) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this clause (10) shall not adversely affect the interests of the Holders of Securities of any series in any material respect.

 

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Upon the request of the Company, accompanied by a Board Resolution, and upon receipt by the Trustee of the documents described in Section 9.03, the Trustee shall, subject to Section 9.03, join with the Company in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture and make any further appropriate agreements and stipulations that may be therein contained.

SECTION 9.02 Supplemental Indentures With Consent of Holders .

With the consent (including consents obtained in connection with a tender offer or exchange offer for Securities of any one or more series or all series or a solicitation of consents in respect of Securities of any one or more series or all series, provided that in each case such offer or solicitation is made to all Holders of then outstanding Securities of each such series (but the terms of such offer or solicitation may vary from series to series)) of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture (acting as one class), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided , however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:

 

  (1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change the coin or currency in which any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or adversely affect any right of the Holder of any Security to require the Company to repurchase such Security;

 

  (2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or

 

  (3) modify any of the provisions of this Section, Section 5.13 or Section 10.07, except to increase any percentage set forth in such Sections or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided , however , that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 10.07, or the deletion of this proviso, in accordance with the requirements of Sections 6.11 and 9.01(9).

 

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Upon the request of the Company, accompanied by a Board Resolution, and upon the filing with the Trustee of evidence of the Act of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.03, the Trustee shall, subject to Section 9.03, join with the Company in the execution of such amendment or supplemental indenture.

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

SECTION 9.03 Execution of Supplemental Indentures .

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel and Officers’ Certificate stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee shall enter into any such supplemental indenture that does not adversely affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise. If it does, the Trustee may, but shall not be obligated to, enter into such supplemental indenture.

SECTION 9.04 Effect of Supplemental Indentures .

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

SECTION 9.05 Conformity With Trust Indenture Act .

Every supplemental indenture executed pursuant to this Article shall conform to any applicable requirements of the Trust Indenture Act.

SECTION 9.06 Reference in Securities to Supplemental Indentures .

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

 

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ARTICLE X

COVENANTS

SECTION 10.01 Payment of Principal, Premium and Interest .

The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of (including any amount in respect of original issue discount) and any premium and interest on each of the Securities of such series at the Place of Payment, at the respective times and in the manner provided in the Securities and this Indenture. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, principal, premium and interest shall be considered paid on the date due if the Paying Agent (other than the Company) holds by 11:00 a.m., New York City time, on that date money in immediately available funds deposited by the Company designated for and sufficient to pay all principal, premium and interest then due. The principal of, premium, and interest on the Securities shall be payable only in accordance with the terms of the relevant Security.

SECTION 10.02 Maintenance of Office or Agency .

The Company will maintain in the Borough of Manhattan, The City of New York, and in each other Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, or an affiliate of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided , however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York, and in each other Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

SECTION 10.03 Money for Securities Payments to be Held in Trust .

If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.

 

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Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to 11:00 a.m., New York City time, on each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

The Company will cause each Paying Agent, other than the Trustee or the Company, for any series of Securities to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series. Each of the Company and the Trustee, having agreed to the foregoing on its behalf as a Paying Agent by its execution and delivery of this instrument, has hereby satisfied the provisions of this paragraph with respect to itself as a Paying Agent.

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company free of the trust formerly impressed upon it.

 

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SECTION 10.04 Statement by Officers as to Default .

The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, a statement signed by the principal executive officer, principal financial officer or principal accounting officer of the Company, which need not constitute an Officers’ Certificate, complying with Trust Indenture Act § 314(a)(4) and stating whether or not to the knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.

SECTION 10.05 Mortgage of Certain Property .

If the Company or any Subsidiary of the Company shall Mortgage as security for any indebtedness for money borrowed any property capable of refining crude oil which (i) is located in the United States and (ii) is determined to be a principal property by the Board of Directors in its discretion, the Company will secure or will cause such Subsidiary to secure each series of the Securities equally and ratably with all indebtedness or obligations secured by the Mortgage then being given and with any other indebtedness of the Company or such Subsidiary then entitled thereto; provided , however , that this covenant shall not apply in the case of:

 

  (1) any Mortgage existing on the date of this Indenture (whether or not such Mortgage includes an after-acquired property provision);

 

  (2) any Mortgage, including a purchase money Mortgage, incurred in connection with the acquisition of any property (for purposes hereof, the creation of any Mortgage within one hundred eighty (180) days after the acquisition or completion of construction of such property shall be deemed to be incurred in connection with the acquisition of such property), the assumption of any Mortgage previously existing on such acquired property or any Mortgage existing on the property of any corporation when such corporation becomes a Subsidiary of the Company;

 

  (3) any Mortgage on such property in favor of the United States of America, any State, or any agency, department, political subdivision or other instrumentality of either, to secure partial, progress, advance or other payments to the Company or any Subsidiary of the Company pursuant to the provisions of any contract or any statute;

 

  (4) any Mortgage on such property in favor of the United States of America, any State, or any agency, department, political subdivision or other instrumentality of either, to secure borrowings by the Company or any Subsidiary of the Company for the purchase or construction of the property Mortgaged;

 

  (5) any Mortgage on any property arising in connection with or to secure all or any part of the cost of the repair, construction, improvement or alteration of such property or any portion thereof;

 

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  (6) any Mortgage on any pipeline, pipeline storage or terminal facility, other pipeline facility, any movable railway, marine or automotive equipment, office building, storage tank, or warehouse facility, any of which is located at or on any such principal property;

 

  (7) any Mortgage on any equipment or other personal property used in connection with any such principal property;

 

  (8) any Mortgage on any such principal property arising in connection with the sale of accounts receivable resulting from the sale of refined products or inventory; or

 

  (9) any renewal of or substitution for any Mortgage permitted under any of the preceding clauses.

Notwithstanding the foregoing restriction contained in this Section 10.05, the Company may and may permit its Subsidiaries to incur liens or grant Mortgages on property covered by the restriction above so long as the net book value of the property so encumbered, together with all property subject to the restriction on sale and leasebacks contained in Section 10.06, does not, at the time such lien or Mortgage is granted, exceed fifteen percent (15%) of Consolidated Net Tangible Assets.

SECTION 10.06 Sale and Leaseback of Certain Properties .

The Company will not, nor will it permit any Subsidiary of the Company to, sell or transfer any property capable of refining crude oil which (i) is located in the United States and (ii) is determined to be a principal property by the Board of Directors in its discretion, with the intention of taking back a lease of such property; provided , however , this covenant shall not apply if:

 

  (1) the lease is between the Company and a Subsidiary or between Subsidiaries;

 

  (2) the lease is for a temporary period by the end of which it is intended that the use of such property by the lessee will be discontinued;

 

  (3) the Company or a Subsidiary of the Company could, in accordance with Section 10.05, Mortgage such property without equally and ratably securing the Securities; or

 

  (4) (A)     the Company promptly informs the Trustee of such sale,

 

  (B) the net proceeds of such sale are at least equal to the fair value (as determined by Board Resolution) of such property and

 

  (C)

the Company shall, and in any such case the Company covenants that it will, within one hundred and eighty (180) days after such sale, apply an amount equal to the net proceeds of such sale to the retirement of debt of the Company, or of a Subsidiary of the Company in the case of property of such Subsidiary, maturing by its terms more than one (1) year after the

 

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date on which it was originally incurred (herein called “funded debt”); provided that the amount to be applied to the retirement of funded debt of the Company or of a Subsidiary of the Company shall be reduced by the amount below if, within seventy-five (75) days after such sale, the Company shall deliver to the Trustee an Officers’ Certificate

 

  (i) stating that on a specified date after such sale the Company or a Subsidiary of the Company, as the case may be, voluntarily retired a specified principal amount of funded debt,

 

  (ii) stating that such retirement was not effected by payment at maturity or pursuant to any applicable mandatory sinking fund or prepayment provision (other than provisions requiring retirement of any funded debt of the Company or a Subsidiary of the Company, as the case may be, under the circumstances referred to in this Section 10.06), and

 

  (iii) stating the then optional redemption or prepayment price applicable to the funded debt so retired or, if there is no such price applicable, the amount applied by the Company or a Subsidiary of the Company, as the case may be, to the retirement of such funded debt.

In the event of such a sale or transfer, the Company shall deliver to the Trustee the Board Resolution referred to in the parenthetical phrase contained in subclause (4)(B) of this Section 10.06 and an Officers’ Certificate setting forth all material facts under this Section 10.06. For the purposes of this Section 10.06 the term retirement of such funded debt shall include the “in substance defeasance” of such funded debt in accordance with then applicable accounting rules.

SECTION 10.07 Waiver of Certain Covenants .

Except as otherwise specified as contemplated by Section 3.01 for Securities of such series and except with respect to compliance with any covenant the modification of which would require the consent of the Holder of each Outstanding Security affected thereby pursuant to Section 9.07, the Company may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided herein for the benefit of the Holders of such series, if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders (which may be obtained in connection with a tender offer or exchange offer for Securities of such series or a solicitation of consents in respect of Securities of such series, provided that in each case such offer or solicitation is made to all Holders of then outstanding Securities of such series (but the terms of such offer or solicitation may vary from series to series)), either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.

 

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ARTICLE XI

REDEMPTION OF SECURITIES

SECTION 11.01 Applicability of Article .

Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for such Securities) in accordance with this Article.

SECTION 11.02 Election to Redeem; Notice to Trustee .

The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption affecting only a single Security), the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.

SECTION 11.03 Selection by Trustee of Securities to be Redeemed .

If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination or any integral multiple thereof) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.

The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.

 

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The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.

SECTION 11.04 Notice of Redemption .

Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 days (or not less than 15 days in the case of convertible Securities) nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register.

All notices of redemption shall state:

 

  (1) the Redemption Date;

 

  (2) the Redemption Price;

 

  (3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed;

 

  (4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date;

 

  (5) the place or places where each such Security is to be surrendered for payment of the Redemption Price;

 

  (6) that the redemption is for a sinking fund, if such is the case; and

 

  (7) if such Securities are convertible into or exchangeable for capital stock, other debt securities (including Securities), warrants, other equity securities or any other securities or property of the Company or any other Person, the name and address of the conversion or exchange agent, the date on which the right to convert or exchange is terminated and the conversion or exchange rate.

 

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Notice of redemption of Securities to be redeemed at the election of the Company shall be given or caused to be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company and shall be irrevocable.

SECTION 11.05 Deposit of Redemption Price .

Prior to 11:00 a.m., New York City time, on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money in immediately available funds sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.

SECTION 11.06 Securities Payable on Redemption Date .

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided , however , that, unless otherwise specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

SECTION 11.07 Securities Redeemed in Part .

Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

SECTION 11.08 Purchase of Securities .

Unless otherwise specified as contemplated by Section 3.01, the Company and any Affiliate of the Company may at any time purchase or otherwise acquire Securities in the open market or by private agreement. Any such acquisition shall not operate as or be deemed for any purpose to be a redemption of the indebtedness represented by such Securities. Any Securities purchased or acquired by the Company may be delivered to the Trustee and, upon such delivery, the indebtedness represented thereby shall be deemed to be satisfied. Section 3.09 shall apply to all Securities so delivered.

 

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ARTICLE XII

SINKING FUNDS

SECTION 12.01 Applicability of Article .

The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 3.01 for such Securities.

The minimum amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund payment.” If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.

SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities .

The Company

 

  (1) may deliver Outstanding Securities of a series (other than any Securities previously called for redemption) and

 

  (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,

in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.

SECTION 12.03 Redemption of Securities for Sinking Fund .

Not less than 45 days prior to each sinking fund payment date for any Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 12.02 and will

 

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also deliver to the Trustee any Securities to be so delivered. Not less than 15 nor more than 45 days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.

ARTICLE XIII

DEFEASANCE AND COVENANT DEFEASANCE

SECTION 13.01 Company’s Option to Effect Defeasance or Covenant Defeasance .

The Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any Securities or any series of Securities, as the case may be, designated pursuant to Section 3.01 as being defeasible pursuant to such Section 13.02 or 13.03, in accordance with any applicable requirements provided pursuant to Section 3.01 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities.

SECTION 13.02 Defeasance and Discharge .

Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder:

 

  (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due,

 

  (2) the Company’s obligations with respect to such Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03,

 

  (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and

 

  (4) this Article.

Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 13.03 applied to such Securities.

 

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SECTION 13.03 Covenant Defeasance .

Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be,

 

  (1) the Company shall be released from its obligations under Section 8.01(1)(B)(i), Section 10.05, Section 10.06 and any covenants provided pursuant to Section 3.01(18), 9.01(2) or 9.01(7) for the benefit of the Holders of such Securities, and

 

  (2) the occurrence of any event specified in Sections 5.01(3), 5.01(4) (with respect to any of Section 8.01(1)(B)(i), Section 10.05, Section 10.06 and any such covenants provided pursuant to Section 3.01(18), 9.01(2) or 9.01(7)) and 5.01(7) shall be deemed not to be or result in an Event of Default,

in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.01(4)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.

SECTION 13.04 Conditions to Defeasance or Covenant Defeasance .

The following shall be the conditions to the application of Section 13.02 or Section 13.03 to any Securities or any series of Securities, as the case may be:

 

  (1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities,

 

  (A) money in an amount (in such currency, currencies or currency unit or units in which the Securities of such series are payable), or

 

  (B) in the case of Securities denominated in Dollars, U.S. Government Obligations, or, in the case of Securities denominated in a Foreign Currency, Foreign Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or

 

  (C) a combination thereof,

 

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in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee in the case of clauses (B) and (C) above, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means:

 

  (x) any security which is

 

  (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or

 

  (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,

which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof; and

 

  (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.

 

  (2) In the event of an election to have Section 13.02 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that

 

  (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or

 

  (B) since the date of this instrument, there has been a change in the applicable Federal income tax law,

in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.

 

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  (3) In the event of an election to have Section 13.03 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.

 

  (4) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.01(5) and (6), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).

 

  (5) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).

 

  (6) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.

 

  (7) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940 (and any statute successor thereto) unless such trust shall be registered under such Act or exempt from registration thereunder.

 

  (8) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.

SECTION 13.05 Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions .

Subject to the provisions of the last paragraph of Section 10.03, all money, U.S. Government Obligations (including the proceeds thereof) and Foreign Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 13.04 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.

 

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The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations and Foreign Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.

Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money, U.S. Government Obligations or Foreign Government Obligations held by it as provided in Section 13.04 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.

SECTION 13.06 Reinstatement .

If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 13.05 with respect to such Securities in accordance with this Article; provided , however , that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.

 

MARATHON PETROLEUM CORPORATION
By:  

  /s/ Janet F. Clark

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
By:  

  /s/ Julie H. Ramos

 

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Exhibit 4.2

MARATHON PETROLEUM CORPORATION

3  1 / 2 % Senior Notes due 2016

5  1 / 8 % Senior Notes due 2021

6   1 / 2 % Senior Notes due 2041

Three series of Securities are hereby established pursuant to Section 3.01 of the Indenture dated as of February 1, 2011 between Marathon Petroleum Corporation (the “Company”) and The Bank of New York Mellon Trust Company, N.A. (the “Trustee”), relating to senior debt securities of the Company (the “Indenture”) as follows:

1. Each capitalized term used but not defined herein shall have the meaning assigned to such term in the Indenture.

2. The title of the 3  1 / 2 % Senior Notes due 2016 shall be the “3  1 / 2 % Senior Notes due 2016” (the “2016 Notes”), the title of the 5  1 / 8 % Senior Notes due 2021 shall be the “5  1 / 8 % Senior Notes due 2021” (the “2021 Notes”) and the title of the 6  1 / 2 % Senior Notes due 2041 shall be the “6  1 / 2 % Senior Notes due 2041” (the “2041 Notes” and, together with the 2016 Notes and the 2021 Notes, the “Notes”). The Notes will be offered pursuant to the Indenture.

3. The aggregate principal amount of the 2016 Notes, the 2021 Notes and the 2041 Notes that may be authenticated and delivered under the Indenture shall be $750,000,000, $1,000,000,000 and $1,250,000,000, respectively (except for Notes of such series authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes of such series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 of the Indenture, and except for any Notes of such series which, pursuant to Section 3.03 of the Indenture, are deemed never to have been authenticated and delivered thereunder); provided, however, that the authorized aggregate principal amount of the Notes of each series may be increased before or after the issuance of any Notes of such series by a Board Resolution (or action pursuant to a Board Resolution) to such effect; provided further, however, that the authorized aggregate principal amount of the Notes of each series may be increased only if the additional Notes issued will be fungible with the original Notes of such series for United States federal income tax purposes.

4. The date on which the principal of the 2016 Notes, the 2021 Notes and the 2041 Notes is due and payable, unless accelerated pursuant to the Indenture, is March 1, 2016, March 1, 2021 and March 1, 2041, respectively.

5. The 2016 Notes shall bear interest at the rate of 3.500% per annum, the 2021 Notes shall bear interest at the rate of 5.125% per annum and the 2041 Notes shall bear interest at the rate of 6.500% per annum. The date from which interest shall accrue for the Notes of each series shall be February 1, 2011. Interest shall be payable semiannually on March 1 and September 1 of each year (each, an “Interest Payment Date”), commencing September 1, 2011, to each Person in whose name the Notes (or one or more Predecessor Securities with respect to such Notes) are registered at the close of business on the Regular Record Date for such interest. The Regular Record Dates for interest payable on the Notes of each series shall be the February 15 or August 15 (as the case may be), whether or not a Business Day, immediately preceding an Interest Payment Date. Interest on the Notes of each series shall be calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

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6. The Notes shall be issuable only in denominations of $2,000 and integral multiples of $1,000 in excess thereof. Subject to any prior conditions stated in the Indenture, the Notes shall be issued in definitive form.

7. The place or places where (a) the principal of, premium (if any) and interest on the Notes shall be payable, (b) the Notes may be surrendered for registration of transfer or for exchange and (c) notices may be given to the Company in respect of the Notes, is the Corporate Trust Office of the Trustee in New York, New York, or such other offices or agencies maintained for such purposes as the Company may designate from time to time and in accordance with the Indenture; provided that payment of interest, other than at Maturity, may be made, at the option of the Company, by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or by electronic funds transfer to an account maintained by the Person entitled thereto as such account shall appear in the Security Register.

8. The Notes of each series are subject to redemption upon not less than 30 nor more than 60 days’ notice by mail, in whole or in part, at the election of the Company, at any time, in the case of the 2016 Notes and the 2021 Notes, and at any time prior to September 1, 2040, in the case of the 2041 Notes, at a Redemption Price equal to the greater of (1) 100% of the principal amount of Notes of such series to be redeemed or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the then current Treasury Rate plus 25 basis points for the 2016 Notes, 30 basis points for the 2021 Notes and 35 basis points for the 2041 Notes, plus, in either case, accrued and unpaid interest on the principal amount being redeemed to the Redemption Date. At any time on or after September 1, 2040, the 2041 Notes are subject to redemption upon not less than 30 nor more than 60 days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to 100% of the principal amount of such Notes to be redeemed plus accrued and unpaid interest on the principal amount being redeemed to the Redemption Date. For purposes of the foregoing:

“Business Day” means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York or Findlay, Ohio and on which commercial banks are open for business in New York, New York and Findlay, Ohio.

“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (“Remaining Life”) of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes.

“Comparable Treasury Price” means, with respect to any Redemption Date, (1) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

 

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“Independent Investment Banker” means one of the Reference Treasury Dealers that the Company appoints to act as the Independent Investment Banker from time to time.

“Reference Treasury Dealer” means each of Morgan Stanley & Co. Incorporated, J.P. Morgan Securities LLC and two additional dealers in U.S. Government securities selected by the Company (each a “Primary Treasury Dealer”) and their respective successors which the Company specifies from time to time; provided , however , that if any of them ceases to be a Primary Treasury Dealer, the Company shall substitute therefor another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.

“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the Notes to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated on the third Business Day preceding the Redemption Date.

9. If a Change of Control Repurchase Event (as defined below) with respect to a series of Notes occurs after the distribution by Marathon Oil Corporation, a Delaware corporation (“Marathon Oil”), to its stockholders of 100% of the outstanding shares of the Company’s common stock (the “Separation”), unless the Company has exercised its right to redeem the Notes of such series as provided in Section 8, the Company shall make an offer to each Holder of the Notes of such series to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes of such series at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of purchase. Within 30

 

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days following any Change of Control Repurchase Event or, at the Company’s option, prior to any Change of Control (as defined below), but after the public announcement of the transaction or event that constitutes or may constitute the Change of Control, the Company shall mail a notice to each Holder to which the Company is required to make a repurchase offer as described above, with a copy to the Trustee, describing the transaction or event that constitutes or may constitute the Change of Control Repurchase Event and offering to repurchase the Notes of the applicable series on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed. The notice may, if mailed prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.

The Company will be required to comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with this Section 9, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of any such conflict.

On the Change of Control Repurchase Event payment date, the Company shall, to the extent lawful:

 

   

accept for payment all Notes or portions of Notes (in a minimum principal amount of $1,000 and integral multiples of $1,000 in excess thereof) properly tendered and not withdrawn pursuant to the Company’s offer;

 

   

deposit with the Paying Agent an amount equal to the aggregate purchase price in respect of all Notes or portions of Notes properly tendered and not withdrawn; and

 

   

deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.

The Paying Agent shall promptly mail to each Holder of Notes properly tendered and not withdrawn the purchase price for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of any such Notes surrendered; provided , that each new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.

The Company shall not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Notes properly tendered and not withdrawn under its offer.

 

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“Below Investment Grade Rating Event” means, with respect to a series of Notes, the rating on the Notes of such series is lowered by each of the Rating Agencies, and the Notes of such series are rated below Investment Grade by each of the Rating Agencies, within 60 days from the earlier of (1) the date of the public notice of an arrangement that could result in a Change of Control or (2) the occurrence of a Change of Control (which period shall be extended so long as the rating of the Notes of such series is under publicly announced consideration for possible downgrade by any of the Rating Agencies).

“Change of Control” means the occurrence of any of the following after consummation of the Separation:

 

  (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Company’s assets and those of its Subsidiaries, taken as a whole, to any “person” or “group” (as those terms are used for purposes of Section 13(d)(3) of the Exchange Act), other than the Company or one or more of its Subsidiaries;

 

  (2) the consummation of any transaction or series of related transactions (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used for purposes of Section 13(d)(3) of the Exchange Act), other than the Company or one of its wholly owned Subsidiaries, becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s Voting Stock, measured by voting power rather than number of shares;

 

  (3) the Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Company’s Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving Person or any direct or indirect parent company of the surviving Person, measured by voting power rather than number of shares, immediately after giving effect to such transaction;

 

  (4) the first day on which a majority of the members of the Company’s board of directors are not Continuing Directors; or

 

  (5) the adoption by the Company of a plan providing for its liquidation or dissolution.

Notwithstanding the foregoing, a transaction will not be considered to be a Change of Control under clause (2) above if (a) the Company becomes a direct or indirect wholly owned Subsidiary of a holding company and (b) (y) immediately following that transaction, the direct or indirect holders of the Voting Stock of the holding company are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (z)

 

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immediately following that transaction, no person (as that term is used in Section 13(d)(3) of the Exchange Act), other than a holding company satisfying the requirements of this sentence, is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of the holding company.

“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

“Continuing Directors” means, as of any date of determination, any member of the Company’s board of directors who (1) was a member of such board of directors on the date of the consummation of the Separation; or (2) was nominated for election, elected or appointed to such board of directors with the approval of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director).

“Fitch” means Fitch Ratings Ltd. and its successors.

“Investment Grade” means a rating of BBB- or better by Fitch (or its equivalent under any successor rating categories of Fitch), Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s) and a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company.

“Moody’s” means Moody’s Investors Services Inc. and its successors.

“Rating Agency” means (1) each of Fitch, Moody’s and S&P; and (2) if any of Fitch, Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company as a replacement agency for Fitch, Moody’s or S&P, or all of them, as the case may be.

“S&P” means Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc., and its successors.

“Substantially all of the Company’s assets” means, at any date, a portion of the non-current assets reflected in the Company’s consolidated balance sheet as of the end of the most recent quarterly period that represents at least sixty-six and two-thirds percent (66  2 / 3 %) of the total reported value of such assets.

“Voting Stock” means, with respect to any Person as of any date, capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.

10. The Notes are not subject to any sinking fund or analogous provisions. The Notes will not be redeemable at the option of the Holder thereof prior to Maturity.

 

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11. The Company will not pay additional amounts on any of the Notes to Holders in respect of any tax, assessment or governmental charge withheld or deducted.

12. The Events of Default and covenants specified in the Indenture will apply to the Notes. In addition, with respect to the Notes of each series, the occurrence of the following event shall constitute an “Event of Default” for as long as the related Guarantees (as defined below) remain in effect: except as permitted by the Guarantee Agreement (as defined below), if such Guarantees shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect, or if Marathon Oil, or any person acting on its behalf, shall deny or disaffirm in writing Marathon Oil’s obligation under the Guarantee.

13. The defeasance and covenant defeasance provisions of Article XIII of the Indenture, including both Sections 13.02 and 13.03 of the Indenture, will apply to the Notes.

14. The Notes of each series shall be issued in the form of one or more Global Securities. The Depositary for the Global Notes (as defined below) shall be The Depository Trust Company, a New York corporation (“DTC”), and the Global Notes shall be registered in the name of DTC or Cede & Co., as a nominee of DTC. Except as set forth herein or in Sections 2.03 or 3.05 of the Indenture, such Global Notes may only be transferred, in whole and not in part, to the Depositary or another nominee of the Depositary.

15. The Trustee will initially act as the Security Registrar for the Notes of each series and as the Paying Agent with respect to the Notes of each series.

16. The Notes of each series and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit 1 hereto.

17. The initial offering and sale of the Notes shall not be registered under the Securities Act or any state securities laws. The Notes shall be offered in reliance upon Rule 144A and Regulation S promulgated under the Securities Act.

18. For so long as any of the Notes constitute “restricted securities” within the meaning of Rule 144(a)(3) promulgated under the Securities Act, the Company shall, if the Company is not then subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, furnish to any Holder or beneficial owner of such Notes, or to any prospective purchaser of such Notes designated by such Holder or beneficial owner, in each case upon the written request of such Holder, beneficial owner or prospective purchaser, the information required to be provided pursuant to Rule 144A(d)(4) promulgated under the Securities Act.

19. The Notes of each series initially will be fully and unconditionally guaranteed on a senior unsecured basis by Marathon Oil, pursuant to guarantees (each, a “Guarantee”) made under the terms and provisions of a Guarantee Agreement of Marathon Oil dated February 1, 2011 (the “Guarantee Agreement”). The Guarantees shall continue in full force and effect for the benefit of the Holders of the Notes and the Trustee until termination thereof as set forth in the Guarantee Agreement.

 

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20. Notes of each series initially sold to “qualified institutional buyers” (as defined in Rule 144A) (“QIBs”) in the United States in reliance on Rule 144A under the Securities Act (the “Rule 144A Notes”) shall be issued in the form of one or more permanent Global Securities of such series, without interest coupons, including appropriate legends as set forth herein (the “Rule 144A Global Notes” of such series), deposited with the Trustee, as custodian for the Depositary. Notes of each series initially sold to non-U.S. persons outside the United States in offshore transactions in reliance on Regulation S under the Securities Act (the “Regulation S Notes”) shall initially be issued in the form of a temporary Global Security of such series, without interest coupons, including appropriate legends as set forth herein (the “Temporary Regulation S Global Note” of such series), deposited with the Trustee, as custodian for the Depositary. Upon expiration of a 40-day “distribution compliance period” as defined in Regulation S (the “Distribution Compliance Period”), and upon the receipt by the Trustee of a written certificate from the Depositary, together with copies of certificates from Euroclear Bank S.A./N.V. (“Euroclear”), as operator of the Euroclear System, and Clearstream Banking, société anonyme (“Clearstream”), certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Temporary Regulation S Global Note of a series (except to the extent of any beneficial owners thereof who acquired an interest therein during the Distribution Compliance Period pursuant to another exemption from registration under the Securities Act, or in a transaction not subject to registration under the Securities Act, and who will take delivery of a beneficial ownership interest in a Rule 144A Global Note of such series), the Temporary Regulation S Global Note of such series shall become a permanent Global Security of such series under the Indenture (the “Permanent Regulation S Global Note” of such series and, together with the Rule 144A Global Note of such series and the Temporary Regulation S Global Note of such series, the “Global Notes” of such series), and beneficial interests in such Temporary Regulation S Global Note shall become beneficial interests in the Permanent Regulation S Global Note. Notwithstanding anything else to the contrary set forth herein or in the Indenture, in no event shall beneficial interests in the Temporary Regulation S Global Note of a series be transferred or exchanged for Notes of such series in definitive form prior to (x) the expiration of the Distribution Compliance Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) of Regulation S.

21. (a) Except as permitted by Section 21(c) or Section 22(d) hereof, each Rule 144A Global Note (and all Notes issued in exchange therefor or in substitution thereof) shall bear the following legend (the “Private Placement Legend”) and shall be subject to the transfer restrictions set forth therein (each defined term in the legend being defined as such for purposes of the legend only):

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE

 

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HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

(b) Each Temporary Regulation S Global Note shall bear the following legend:

THE RIGHTS ATTACHING TO THIS SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THIS SECURITY AND PURSUANT TO THE INDENTURE (AS DEFINED HEREIN).

Beneficial interests in the Temporary Regulation S Global Note may be held only through accounts of designated agents holding on behalf of Euroclear or Clearstream and may not be transferred to a U.S. person or for the account or benefit of a U.S. person (other than the Initial Purchasers (as defined below)) except in accordance with Section 22(b) and (c) hereof.

(c) Notwithstanding the foregoing, upon consummation of the Exchange Offer (as defined in the Registration Rights Agreement dated as of February 1, 2011 (the “Registration Rights Agreement”) among the Company, Marathon Oil and Morgan Stanley & Co. Incorporated and J.P. Morgan Securities LLC, as representatives of the initial purchasers specified therein (the “Initial Purchasers”)), the Company shall issue and, at the direction of the Company, the Trustee shall authenticate Notes (“Exchange Notes”) in exchange for Notes accepted for exchange in the Exchange Offer, which Exchange Notes shall not bear the Private Placement Legend or the legend set forth in Section 21(b), and the Security Registrar shall rescind any restriction on the transfer of such Exchange Notes.

 

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22. (a) The following provisions shall apply with respect to any proposed transfer of a Rule 144A Note prior to the expiration of the holding period applicable to sales of such Notes under Rule 144 of the Securities Act, and the Security Registrar shall refuse to register any transfer of such Notes not complying with the restrictions set forth in the Private Placement Legend and in this Section 22. In addition to the requirements set forth in Section 3.05 of the Indenture, Rule 144A Notes that are presented or surrendered for registration of transfer or exchange pursuant to Section 3.05 of the Indenture shall be accompanied by the following additional information and documents, as applicable, upon which the Security Registrar may conclusively rely:

(i) if such Notes are being delivered to the Security Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect (in substantially the form of Exhibit 2 hereto);

(ii) if such Notes are being transferred (1) to a QIB in accordance with Rule 144A, (2) pursuant to an exemption from registration in accordance with Rule 144 under the Securities Act or (3) pursuant to an effective registration statement under the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit 2 hereto);

(iii) if such Notes are being transferred pursuant to an exemption from registration in accordance with Rule 903 or Rule 904 of Regulation S, certifications to that effect from such Holder (in substantially the form of Exhibit 2 and Exhibit 3 hereto) and an opinion of counsel to that effect if the Company or the Trustee so requests; or

(iv) if such Notes are being transferred in reliance on and in compliance with another exemption from the registration requirements of the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit 2 hereto) and an opinion of counsel to that effect if the Company or the Trustee so requests.

(b) In addition to the requirements set forth in Section 3.05 of the Indenture, a holder of a beneficial interest in the Temporary Regulation S Global Note who wishes to transfer its interest in such Note to a QIB in accordance with Rule 144A who takes delivery in the form of a beneficial interest in the Rule 144A Global Note shall deliver to the Security Registrar a certification to that effect (in substantially the form of Exhibit 2 hereto) upon which the Security Registrar may conclusively rely. After the expiration of the Distribution Compliance Period, interests in the Regulation S Note may be transferred without requiring the certification set forth in this Section 22(b).

(c) The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with Section 3.05 of the Indenture and Section 21 and Section 22 hereof (including the restrictions on transfer set forth therein and herein) and the rules and procedures of the Depositary therefor, which shall include restrictions on transfer comparable to those set forth therein and herein to the extent required by the Securities Act;

 

A-10


provided, however , that prior to the expiration of the Distribution Compliance Period, transfers and exchanges of beneficial interests in the Temporary Regulation S Global Note may be made pursuant to such restrictions only (1) to a Person that is not a U.S. person or for the account or benefit of a Person that is not a U.S. person (other than an Initial Purchaser) within the meaning of Regulation S under the Securities Act or (2) to a QIB, in each case that hold such interests through Euroclear or Clearstream.

(d) If Notes are issued upon the registration of transfer, exchange or replacement of Notes not bearing the Private Placement Legend, the Notes so issued shall not bear such legends. If Notes are issued upon the registration or transfer, exchange or replacement of Notes bearing the Private Placement Legend, or if a request is made to remove the Private Placement Legend on a Note, the Notes so issued shall bear the Private Placement Legend, or the Private Placement Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Trustee such satisfactory evidence, which may include an opinion of counsel of recognized standing licensed to practice law in the State of New York and experienced in matters involving the Securities Act, as may be reasonably required by the Company that neither the Private Placement Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S, that such Notes are not “restricted securities” within the meaning of Rule 144 or that such Notes were transferred pursuant to an effective registration statement under the Securities Act. Upon provision of such satisfactory evidence, the Trustee, at the direction of the Company, shall authenticate and deliver a Note that does not bear the Private Placement Legend. If a Private Placement Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Private Placement Legend shall be reinstated.

(e) Notwithstanding anything herein to the contrary, neither the Trustee nor the Security Registrar shall have any responsibility to receive any letters, opinions or certifications, nor any responsibility to monitor compliance with any transfer restrictions, in connection with any transfer or exchange of any beneficial interest in a Global Security for a beneficial interest in the same Global Security.

 

A-11


Exhibit 1

MARATHON PETROLEUM CORPORATION

[3  1 / 2 % Senior Notes due 2016] [5  1 / 8 % Senior Notes due 2021] [6  1 / 2 % Senior Notes due 2041]

 

No.                    $    ______
      CUSIP No.    ___________

[ FOR GLOBAL SECURITIES : THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]

[ FOR RULE 144A GLOBAL NOTE : THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT


TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. ]

[ FOR TEMPORARY REGULATION S GLOBAL NOTE : THE RIGHTS ATTACHING TO THIS SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THIS SECURITY AND PURSUANT TO THE INDENTURE (AS DEFINED HEREIN).]

MARATHON PETROLEUM CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to              , or registered assigns, the principal sum of              Dollars ($              ), [ If the security is a Global Security, insert: or such greater or lesser amount as indicated on the Schedule of Exchanges of Securities attached hereto, ] on March 1, [2016] [2021] [2041], and to pay interest thereon from February 1, 2011 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on March 1 and September 1 in each year commencing September 1, 2011, at the rate of [3.500] [5.125] [6.500]% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the February 15 or August 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange all as more fully provided in said Indenture.

Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York, New York, in such coin or currency of the United States of America as at the time of payment is

 

2


legal tender for payment of public and private debts; provided, however , that (1) payments on any Global Security shall be made by electronic (same-day) funds transfer to the Depositary and (2) at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or by electronic funds transfer to an account maintained by the Person entitled thereto as specified in the Security Register, provided that such Person shall have given the Trustee written instructions.

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

3


IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

Dated:                     

 

MARATHON PETROLEUM CORPORATION,

By:

 

 

Attest:

 

 


CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

Dated:                     

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

As Trustee

By:  

 

    Authorized Signatory


MARATHON PETROLEUM CORPORATION

[3  1 / 2 % Senior Notes due 2016] [5  1 / 8 % Senior Notes due 2021] [6  1 / 2 % Senior Notes due 2041]

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of February 1, 2011 (herein called the “Indenture,” which term shall have the meaning assigned to it in such instrument), between the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof initially limited in aggregate principal amount to $[750,000,000] [1,000,000,000] [1,250,000,000].

The Securities of this series are subject to redemption upon not less than 30 days notice by mail, at any time [ for 2016 Notes and 2021 Notes: prior to the Stated Maturity] [ for 2041 Notes : prior to September 1, 2040], in whole or in part, at the election of the Company, at a Redemption Price equal to the greater of (1) 100% of the principal amount of such Securities to be redeemed or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the then current Treasury Rate plus [25] [30] [35] basis points, plus, in either case, accrued and unpaid interest on the principal amount being redeemed to the Redemption Date. [ for 2041 Notes: At any time on or after September 1, 2040, the Securities are subject to redemption prior to the Stated Maturity upon not less than 30 days’ notice by mail, in whole or in part, at the election of the Company, at a Redemption Price equal to 100% of the principal amount of such Securities to be redeemed, plus accrued and unpaid interest on the principal amount being redeemed to the Redemption Date.]

“Business Day” means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York or Findlay, Ohio and on which commercial banks are open for business in New York, New York and Findlay, Ohio.

“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (“Remaining Life”) of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Securities.

“Comparable Treasury Price” means, with respect to any Redemption Date, (1) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.


“Independent Investment Banker” means one of the Reference Treasury Dealers that the Company appoints to act as the Independent Investment Banker from time to time.

“Reference Treasury Dealer” means each of Morgan Stanley & Co. Incorporated, J.P. Morgan Securities LLC and two additional dealers in U.S. Government securities selected by the Company (each a “Primary Treasury Dealer”) and their respective successors which the Company specifies from time to time; provided , however , that if any of them ceases to be a Primary Treasury Dealer, the Company shall substitute therefor another Primary Treasury Dealer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.

“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the Securities to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated on the third Business Day preceding the Redemption Date.

Notice of the redemption will be mailed to holders of Securities by first-class mail at least 30 and not more than 60 days prior to the date fixed for redemption. If fewer than all of the Securities are to be redeemed, the Trustee will select, not more than 45 days prior to the Redemption Date, the particular Securities or portions thereof for redemption from the outstanding Securities not previously called by such method as the Trustee deems fair and appropriate.

Unless the Company defaults in payment of the redemption price, on or after the redemption date, interest will cease to accrue on the Securities or portions thereof called for redemption.

 

2


In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.

If a Change of Control Repurchase Event with respect to the Securities occurs after the distribution by Marathon Oil Corporation, a Delaware corporation, to its stockholders of 100% of the outstanding shares of the Company’s common stock, unless the Company has exercised its right to redeem the Securities, each Holder of Securities may require the Company to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Securities at a price equal to 101% of the aggregate principal amount of Securities repurchased, plus any accrued and unpaid interest on the Securities repurchased to the date of purchase, on the terms and subject to the conditions set forth in the Indenture.

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or of certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.

The Indenture contains provisions permitting the Company and the Trustee to modify the Indenture or any supplemental indenture without the consent of the Holders for one or more of the following purposes: (1) to evidence the succession of another corporation to the Company; (2) to add to the covenants of the Company; (3) to add additional events of default for the benefit of Holders of all or any series of Securities; (4) to add to or change provisions of the Indenture to allow for the issuance of Securities in other forms; (5) to add to, change or eliminate any of the provisions of the Indenture in respect of one or more series of Securities thereunder, under certain conditions specified therein; (6) to secure the Securities pursuant to the requirements of Section 10.05 of the Indenture or otherwise; (7) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01 of the Indenture; (8) to evidence the appointment of a successor Trustee; and (9) to cure any ambiguity, to correct or supplement any provision of the Indenture which may be defective or inconsistent with any other provision of the Indenture, or to make any other provisions with respect to matters or questions arising under the Indenture as shall not adversely affect the interests of the Holders in any material respect.

The Indenture also permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

3


As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any such registration of transfer or exchange, but, subject to any applicable provisions of the Indenture, the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

4


FORM OF ASSIGNMENT

ABBREVIATIONS

Customary abbreviations may be used in the name of a Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).

Additional abbreviations may also be used though not in the above list.

 

 

FOR VALUE RECEIVED, the undersigned hereby sell(s),

assign(s) and transfer(s) unto

 

 

Please insert Social Security or

other identifying number of assignee

PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE

 

 

 

 

 

the within Security and all rights thereunder, hereby irrevocably constituting and appointing                                          attorney to transfer said Security on the books of the Company, with full power of substitution in the premises.

 

Dated:  

 

Notice: This signature to the assignment must correspond with the name as written on the face of the within instrument in every particular, without alteration or enlargement, or any change whatever.

 

5


SCHEDULE OF INCREASES OR DECREASES IN THE PRINCIPAL AMOUNT OF SECURITIES*

The original principal amount of this Security is              U.S. Dollars ($              ). The following increases or decreases in the principal amount of this Security have been made:

 

Date of

increase or

decrease

  

Amount of

decrease in

principal amount

of this

Security

  

Amount of

increase in

principal amount

of this

Security

  

Principal amount

of this

Security following

such decrease

or increase

  

Signature of authorized
signatory of

Trustee or

Depositary

           
           
           

 

* To be included only if the Security is a Global Security

 

6


Exhibit 2

FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE

OR REGISTRATION OF TRANSFER OF NOTES

 

Re:

[3  1 / 2 % Senior Notes due 2016] [5  1 / 8 % Senior Notes due 2021] [6  1 / 2 % Senior Notes due 2041] (the “Notes”) of Marathon Petroleum Corporation (the “Company”)

This Certificate relates to $              principal amount of Notes held in *              book-entry or *              definitive form by              (the “Transferor”).

The Transferor has requested the Security Registrar by written order to exchange or register the transfer of a Note or Notes or beneficial interests therein (the “Transfer”).

In connection with such request and in respect of each such Note or beneficial interest therein, the Transferor does hereby certify that the Transferor is familiar with the Indenture relating to the above-captioned Notes and that the Transfer does not require registration under the Securities Act of 1933, as amended (the “Securities Act”), because:*

 

¨ Such Note or beneficial interest is being acquired for the Transferor’s own account without transfer.

 

¨ Such Note or beneficial interest is being transferred to (i) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), in accordance with Rule 144A under the Securities Act, that is purchasing for its own account or for the account of another qualified institutional buyer, in each case to whom notice is given that the Transfer is being made in reliance on Rule 144A; or (ii) to a non-U.S. person in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act (and in the case of clause (ii), based upon an opinion of counsel if the Company or the Trustee so requests, together with a certification in substantially the form of Exhibit 3 to the Establishment Action setting forth the terms of the Notes pursuant to the Indenture).

 

¨ Such Note or beneficial interest is being transferred pursuant to (i) an exemption from the registration requirements of the Securities Act provided by Rule 144 or (ii) an effective registration statement under the Securities Act.

 

¨ Such Note or beneficial interest is being transferred in reliance on and in compliance with another exemption from the registration requirements of the Securities Act (and based upon an opinion of counsel if the Company so requests).

 

*

Fill in blank or check appropriate box, as applicable.


[INSERT NAME OF TRANSFEROR]
By:  

 

  Name:
  Title:
  Address:

Date:


Exhibit 3

FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S

 

Re:

[3  1 / 2 % Senior Notes due 2016] [5  1 / 8 % Senior Notes due 2021] [6  1 / 2 % Senior Notes due 2041] (the “Notes”) of Marathon Petroleum Corporation (the “Company”)

This Certificate relates to $              principal amount of Notes held in *              book-entry or *              definitive form by              (the “Transferor”).

The Transferor has requested the Security Registrar by written order to exchange or register the transfer of a Note or Notes or beneficial interests therein (the “Transfer”) for an interest in the Regulation S Temporary Global Note to be held with [Euroclear] [Clearstream] through the Depositary (in each case as defined in the Indenture related to the above-referenced Notes or the related Establishment Action (as defined in the Indenture)).

In connection with such request and in respect of each such Note or beneficial interest therein, the Transferor does hereby certify that the Transferor is familiar with such Indenture and Establishment Action and that:

 

  (a) the offer of such Notes or beneficial interests was not made to a person in the United States or for the benefit of a person in the United States (other than an Initial Purchaser);

 

  (b) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States; or the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;

 

  (c) no directed selling efforts have been made by the Transferor in the United States in contravention of the requirements of Rule 903(a) or Rule 904(a) of Regulation S under the U.S. Securities Act of 1933 (the “Securities Act”), as applicable;

 

  (d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

 

  (e) if the proposed transfer is being made prior to the expiration of a 40-day “distribution compliance period” as defined in Regulation S under the Securities Act, the transfer is being made (a) to a person that is not a U.S. person or for the account or benefit of a person that is not a U.S. person within the meaning of Regulation S under the Securities Act; or (b) to a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, in each case that holds such Note or beneficial interests through Euroclear Bank S.A./N.V., as operator of the Euroclear System, or Clearstream Banking, société anonyme.

 

*

Fill in blank or check appropriate box, as applicable.


The Company and the Trustee are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S under the Securities Act.

 

[INSERT NAME OF TRANSFEROR]
By:  

 

  Name:
  Title:
  Address:

Date:

Exhibit 4.4

EXECUTION

REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT dated February 1, 2011 (this “ Agreement ”) is entered into by and among Marathon Petroleum Corporation, a Delaware corporation (the “ Company ”), Marathon Oil Corporation, a Delaware corporation (the “ Guarantor ”), and Morgan Stanley & Co. Incorporated (“ Morgan Stanley ”) and J.P. Morgan Securities LLC (“ J.P. Morgan ”) as representatives (the “ Representatives ”) of the initial purchasers listed in Schedule I to the Purchase Agreement (as defined below) (the “ Initial Purchasers ”).

The Company, the Guarantor and the Representatives are parties to the Purchase Agreement dated January 27, 2011 (the “ Purchase Agreement ”), which provides for the sale by the Company to the Initial Purchasers of (i) $750,000,000 principal amount of the Company’s 3  1 / 2 % Senior Notes due 2016 (the “ 2016 Notes ”), (ii) $1,000,000,000 principal amount of its 5  1 / 8 % Senior Notes due 2021 (the “ 2021 Notes ”) and (iii) $1,250,000,000 principal amount of its 6  1 / 2 % Senior Notes due 2041 (the “ 2041 Notes ” and, together with the 2016 Notes and the 2021 Notes, the “ Securities ”), which initially will be guaranteed on an unsecured senior basis by the Guarantor pursuant to the terms of the Guarantee Agreement (as defined below) until completion of the Separation (as defined in the Purchase Agreement). As an inducement to the Initial Purchasers to enter into the Purchase Agreement, the Company and the Guarantor have agreed to provide to the Initial Purchasers and their direct and indirect transferees the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement.

In consideration of the foregoing, the parties hereto agree as follows:

1. Definitions . As used in this Agreement, the following terms shall have the following meanings:

Business Day ” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or Houston, Texas are authorized or required by law to remain closed.

Company ” shall have the meaning set forth in the preamble.

Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time.

Exchange Dates ” shall have the meaning set forth in Section 2(a)(ii) hereof.

Exchange Offer ” shall mean the exchange offer by the Company and, if applicable pursuant to the provisions of Section 2 hereof, the Guarantor of Exchange Securities of each series for Registrable Securities of such series pursuant to Section 2(a) hereof.


Exchange Offer Registration ” shall mean a registration under the Securities Act effected pursuant to Section 2(a) hereof.

Exchange Offer Registration Statement ” shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

Exchange Securities ” shall mean senior notes of a series issued by the Company under the Indenture and, if applicable pursuant to the provisions of Section 2 hereof, guaranteed by the Guarantor under the Guarantee Agreement, containing terms identical to the applicable series of Securities (except that the Exchange Securities will not be subject to restrictions on transfer or to any increase in annual interest rate for failure to comply with this Agreement) and to be offered to Holders in exchange for Registrable Securities of such series pursuant to the Exchange Offer for such series.

FINRA ” means the Financial Industry Regulatory Authority, Inc.

Free Writing Prospectus ” means each free writing prospectus (as defined in Rule 405 under the Securities Act) prepared by or on behalf of the Company and used by the Company in connection with the sale of the Securities or the Exchange Securities.

Guarantee Agreement ” shall mean the Guarantee Agreement of the Guarantor in favor of the holders of the Securities and, if applicable, the Exchange Securities, dated as of February 1, 2011, and as the same may be amended from time to time in accordance with the terms thereof.

Guarantees ” shall mean the guarantees of the Securities and, if such guarantees are still in effect pursuant to the terms of the Guarantee Agreement at the time of issuance of any Exchange Securities, guarantees of the Exchange Securities by the Guarantor pursuant to the Guarantee Agreement until completion of the Separation.

Guarantor ” shall have the meaning set forth in the preamble.

Holders ” shall mean the Initial Purchasers, for so long as they own any Registrable Securities, and each of their successors, assigns and direct and indirect transferees who become owners of Registrable Securities under the Indenture; provided that, for purposes of Section 4 and Section 5 hereof, the term “Holders” shall include Participating Broker-Dealers.

Indemnified Person ” shall have the meaning set forth in Section 5(c) hereof.

Indemnifying Person ” shall have the meaning set forth in Section 5(c) hereof.

 

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Indenture ” shall mean the Indenture dated as of February 1, 2011 between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee, and as the same may be amended and supplemented from time to time in accordance with the terms thereof with applicability to the Securities and the Exchange Securities.

Initial Purchasers ” shall have the meaning set forth in the preamble.

Inspector ” shall have the meaning set forth in Section 3(a)(xv) hereof.

Issuer Information ” shall have the meaning set forth in Section 5(a) hereof.

J.P. Morgan ” shall have the meaning set forth in the preamble.

Majority Holders ” shall mean the Holders of a majority of the aggregate principal amount of the outstanding Registrable Securities of each series; provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, any Registrable Securities owned directly or indirectly by the Company or any of its affiliates shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount; and provided , further , that if the Company shall issue any additional Securities under the Indenture prior to consummation of the Exchange Offer or, if applicable, the effectiveness of any Shelf Registration Statement, such additional Securities and the Registrable Securities to which this Agreement relates shall be treated together as one class for purposes of determining whether the consent or approval of Holders of a specified percentage of Registrable Securities has been obtained.

Morgan Stanley ” shall have the meaning set forth in the preamble.

Notice and Questionnaire ” shall mean a notice of registration statement and selling security holder questionnaire distributed to a Holder by the Company upon receipt of a Shelf Request from such Holder.

Participating Broker-Dealers ” shall have the meaning set forth in Section 4(a) hereof.

Participating Holder ” shall mean any Holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Company in accordance with Section 2(b) hereof.

Person ” shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.

Prospectus ” shall mean the prospectus included in, or, pursuant to the rules and regulations of the Securities Act, deemed a part of, a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or

 

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supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including any document incorporated by reference therein.

Purchase Agreement ” shall have the meaning set forth in the preamble.

Registrable Securities ” shall mean the Securities; provided that the Securities shall cease to be Registrable Securities upon the earliest to occur of the following: (i) when a Registration Statement with respect to such Securities has become effective under the Securities Act and such Securities have been exchanged or disposed of pursuant to such Registration Statement, (ii) when such Securities cease to be outstanding, (iii) when such Securities are sold pursuant to Rule 144 under the Securities Act (but not Rule 144A) or (iv) the date that is three years after the date of this Agreement.

Registration Default ” shall mean the occurrence of any of the following: (i) the Exchange Offer is not completed on or prior to the Target Registration Date or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or Section 2(b)(ii) hereof, has not become effective on or prior to the Target Registration Date, (ii) if the Company receives a Shelf Request pursuant to Section 2(b)(iii), the Shelf Registration Statement required to be filed thereby has not become effective by the later of (a) the Target Registration Date and (b) 90 days after delivery of such Shelf Request, (iii) the Shelf Registration Statement, if required by this Agreement, has become effective and thereafter ceases to be effective or the Prospectus contained therein ceases to be usable for resales of Registrable Securities, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable for resales of Registrable Securities exists for more than 90 days (whether or not consecutive) in any 12-month period or (iv) the Shelf Registration Statement, if required by this Agreement, has become effective and thereafter, on more than two occasions of at least 30 consecutive days in any 12-month period during the Shelf Effectiveness Period, the Shelf Registration Statement ceases to be effective or the Prospectus contained therein ceases to be usable for resales of Registrable Securities, in each case whether or not permitted by this Agreement.

Registration Expenses ” shall mean any and all expenses incident to performance of or compliance by the Company and the Guarantor with this Agreement, including without limitation: (i) all SEC or FINRA registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of one counsel for any Underwriters or Holders in connection with blue sky qualification of any Exchange Securities or Registrable Securities), (iii) all expenses of the Company and the Guarantor in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any Free Writing Prospectus and any amendments or supplements thereto, any underwriting agreements, securities sales agreements or other similar agreements and any other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees incurred by the Company or

 

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the Guarantor (including with respect to maintaining ratings of the Securities), (v) all fees and disbursements relating to the qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Company and the Guarantor and, in the case of a Shelf Registration Statement, the reasonable fees and disbursements of one counsel for the Participating Holders (which counsel shall be selected by the Participating Holders holding a majority of the aggregate principal amount of Registrable Securities held by such Participating Holders and which counsel may also be counsel for the Initial Purchasers) and (viii) the fees and disbursements of the independent registered public accountants of the Company and the Guarantor, including the expenses of any special audits or “comfort” letters required by or incident to the performance of and compliance with this Agreement, but excluding fees and expenses of counsel to the Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.

Registration Statement ” shall mean any registration statement of the Company and, if applicable pursuant to the provisions of Section 2 hereof, the Guarantor that covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

Representatives ” shall have the meaning set forth in the preamble.

SEC ” shall mean the United States Securities and Exchange Commission.

Securities ” shall have the meaning set forth in the preamble.

Securities Act ” shall mean the Securities Act of 1933, as amended from time to time.

Shelf Effectiveness Period ” shall have the meaning set forth in Section 2(b) hereof.

Shelf Registration ” shall mean a registration effected pursuant to Section 2(b) hereof.

Shelf Registration Statement ” shall mean a “shelf” registration statement of the Company and, if applicable pursuant to the provisions of Section 2 hereof, the Guarantor that covers all or a portion of the Registrable Securities (but no other securities unless approved by a majority in aggregate principal amount of the Registrable Securities included on such Registration Statement held by the Participating Holders) on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

 

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Shelf Request ” shall have the meaning set forth in Section 2(b) hereof.

Staff ” shall mean the staff of the SEC.

Suspension Actions ” shall have the meaning set forth in Section 2(e) hereof.

Target Registration Date ” shall mean January 27, 2012.

Trust Indenture Act ” shall mean the Trust Indenture Act of 1939, as amended from time to time.

Trustee ” shall mean the trustee with respect to the Securities under the Indenture.

Underwriter ” shall have the meaning set forth in Section 3(e) hereof.

Underwritten Offering ” shall mean an offering in which Registrable Securities are sold to an Underwriter for reoffering to the public.

2. Registration Under the Securities Act . (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantor shall use their commercially reasonable efforts to (x) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities and (y) have such Registration Statement become effective on or before the Target Registration Date and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantor shall commence the Exchange Offer for each series promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable efforts to complete the Exchange Offer for such series not later than 60 days after such effective date.

After the Exchange Offer Registration Statement has become effective, the Company and the Guarantor shall commence the Exchange Offer for each series by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:

(i) that such Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities of such series validly tendered and not properly withdrawn will be accepted for exchange;

(ii) the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (each, an “ Exchange Date ”);

 

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(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;

(iv) that any Holder electing to have a Registrable Security of a series exchanged pursuant to the Exchange Offer for such series will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date with respect to such Exchange Offer; and

(v) that any Holder of Registrable Securities of a series will be entitled to withdraw its election, not later than the close of business on the last Exchange Date with respect to the Exchange Offer for such series, by (A) sending to the institution and at the address specified in the notice, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities.

As a condition to participating in an Exchange Offer, a Holder will be required to represent to the Company and the Guarantor that (1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (2) at the time of the commencement of such Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or the Guarantor and (4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities.

As soon as practicable after the last Exchange Date with respect to an Exchange Offer for Registrable Securities of a series, the Company and the Guarantor shall:

(i) accept for exchange Registrable Securities of such series or portions thereof validly tendered and not properly withdrawn pursuant to such Exchange Offer; and

(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities of such series or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities of such series equal in principal amount to the principal amount of the Registrable Securities of such series tendered by such Holder.

 

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The Company and the Guarantor shall use their commercially reasonable efforts to complete each Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with each Exchange Offer. No Exchange Offer shall be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.

(b) In the event that (i) the Company and the Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) hereof is not available or the Exchange Offer for Registrable Securities of a series may not be completed as soon as practicable after the last Exchange Date with respect to such Exchange Offer because it would violate any applicable law or applicable interpretations of the Staff, (ii) such Exchange Offer is not for any other reason completed by the Target Registration Date or (iii) prior to the last Exchange Date with respect to such Exchange Offer, the Company receives a written request (a “ Shelf Request ”) from any Initial Purchaser representing that it holds Registrable Securities of the applicable series that are or were ineligible to be exchanged in such Exchange Offer, the Company and the Guarantor shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities of such series by the Holders thereof and to have such Shelf Registration Statement become effective; provided that (a) no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof, and (b) the Company and the Guarantor shall be under no obligation to file any such Shelf Registration Statement before they are obligated to file an Exchange Offer Registration Statement pursuant to Section 2(a) hereof.

In the event that the Company and the Guarantor are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantor shall use their commercially reasonable efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer.

The Company and the Guarantor agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the Securities covered thereby cease to be Registrable Securities (the “ Shelf Effectiveness Period” ). The Company and the Guarantor further agree to supplement or amend the

 

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Shelf Registration Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantor agree to furnish to the Participating Holders copies of any such supplement or amendment promptly after its being used or filed with the SEC, as requested by the Participating Holders.

(c) The Company shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.

(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act.

If a Registration Default occurs with respect to a series of Registrable Securities, the interest rate on the Registrable Securities of such series will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following such Registration Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the date such Registration Default ends, up to a maximum increase of 1.00% per annum. A Registration Default ends when the Securities of such series cease to be Registrable Securities or, if earlier, (1) in the case of a Registration Default under clause (i) or (ii) of the definition thereof, when the Exchange Offer for such series is completed or when the Shelf Registration Statement covering such Registrable Securities becomes effective or (2) in the case of a Registration Default under clause (iii) or clause (iv) of the definition thereof, when the Shelf Registration Statement again becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.

Anything herein to the contrary notwithstanding, if the applicable Exchange Offer is consummated, any Holder who was, at the time such Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender or withdrew, its Securities for Exchange Securities in such Exchange Offer will not be entitled to receive any additional interest pursuant to the preceding paragraph, and such Securities will no longer constitute Registrable Securities hereunder.

 

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(e) The Company and the Guarantor shall be entitled to suspend their obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement or any Free Writing Prospectus, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus or any Free Writing Prospectus usable or take any similar action (collectively, “ Suspension Actions ”) if there is a possible acquisition or business combination or other transaction, business development or event involving the Company, the Guarantor or either of their subsidiaries that may require disclosure in the Shelf Registration Statement or Prospectus and the Company or the Guarantor determines that such disclosure is not in the best interest of the Company, the Guarantor and their stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement or Prospectus would be impracticable. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof).

(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantor acknowledge that any failure by the Company or the Guarantor to comply with their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company’s and the Guarantor’s obligations under Section 2(a) and Section 2(b) hereof.

3. Registration Procedures . (a) In connection with their obligations pursuant to Section 2(a) and Section 2(b) hereof, the Company and the Guarantor shall:

(i) prepare and file with the SEC a Registration Statement on the appropriate form under the Securities Act, which form (A) shall be selected by the Company and the Guarantor, (B) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the Participating Holders thereof and (C) shall comply as to form in all material respects with the requirements of the applicable form and include or incorporate by reference all financial statements required by the SEC to be filed therewith; and use their commercially reasonable efforts to cause such Registration Statement to become effective and remain effective for the applicable period in accordance with Section 2 hereof;

 

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(ii) prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the period described in Section 4(3) of, and Rule 174 under, the Securities Act that is applicable to transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities;

(iii) to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing Prospectus that is required to be filed by the Company or the Guarantor with the SEC in accordance with the Securities Act and to retain a copy of any Free Writing Prospectus not required to be filed;

(iv) in the case of a Shelf Registration, furnish to each Participating Holder, to counsel for the Initial Purchasers, to counsel for such Participating Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, preliminary prospectus or Free Writing Prospectus, and any amendment or supplement thereto, as such Participating Holder, counsel or Underwriter may reasonably request in order to facilitate the sale or other disposition of the Registrable Securities thereunder; and, subject to Section 3(c) hereof, the Company and the Guarantor consent to the use of such Prospectus, preliminary prospectus or such Free Writing Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the Participating Holders and any such Underwriters in connection with the offering and sale of the Registrable Securities covered by and in the manner described in such Prospectus, preliminary prospectus or such Free Writing Prospectus or any amendment or supplement thereto in accordance with applicable law;

(v) use their commercially reasonable efforts to register or qualify the Registrable Securities under all applicable state securities or blue sky laws of such jurisdictions of the United States as any Participating Holder shall reasonably request in writing by the time the applicable Registration Statement becomes effective; cooperate with such Participating Holders in connection with any filings required to be made with FINRA; and do any and all other acts and things that may be reasonably necessary or advisable to enable each Participating Holder to complete the disposition in each such jurisdiction of the Registrable Securities owned by such Participating Holder; provided that neither the Company nor the Guarantor shall be required to (1) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (2) file any general consent to service of process in any such jurisdiction or (3) subject itself to taxation in any such jurisdiction if it is not already so subject;

 

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(vi) notify counsel for the Initial Purchasers and, in the case of a Shelf Registration, notify each Participating Holder and counsel for such Participating Holders promptly and, if requested by any such Participating Holder or counsel, confirm such advice in writing (1) when a Registration Statement has become effective, when any post-effective amendment thereto has been filed and becomes effective, when any Free Writing Prospectus has been filed or any amendment or supplement to the Prospectus or any Free Writing Prospectus has been filed, (2) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, including the receipt by the Company of any notice of objection of the SEC to the use of a Shelf Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, (3) if, between the applicable effective date of a Shelf Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company or the Guarantor contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to an offering of such Registrable Securities cease to be true and correct in all material respects or if the Company or the Guarantor receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any U.S. jurisdiction or the initiation of any proceeding for such purpose, (4) of the happening of any event during the period a Registration Statement is effective that makes any statement made in such Registration Statement or the related Prospectus or any Free Writing Prospectus untrue in any material respect or that requires the making of any changes in such Registration Statement or Prospectus or any Free Writing Prospectus in order to make the statements therein not misleading and (5) of any determination by the Company or the Guarantor that a post-effective amendment to a Registration Statement or any amendment or supplement to the Prospectus or any Free Writing Prospectus would be appropriate;

(vii) notify counsel for the Initial Purchasers of any request by the SEC or any state securities authority for amendments and supplements to a Registration Statement, Prospectus or any Free Writing Prospectus or for additional information after the Registration Statement has become effective;

(viii) use their commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or, in the case of a Shelf Registration, the resolution of any objection of the SEC pursuant to Rule 401(g)(2) under the Securities Act, including by filing an amendment to such Registration Statement on the proper form, as soon as reasonably practicable and provide prompt notice to each Holder or Participating Holder of the withdrawal of any such order or such resolution;

(ix) in the case of a Shelf Registration, furnish to each Participating Holder, without charge, upon request, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (without any documents incorporated therein by reference or exhibits thereto, unless requested), if such documents are not available via EDGAR;

 

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(x) in the case of a Shelf Registration, cooperate with the Participating Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities to be issued in such denominations and, in the case of certificated securities, registered in such names (consistent with the provisions of the Indenture) as such Participating Holders may reasonably request at least one Business Day prior to the closing of any sale of Registrable Securities;

(xi) upon the occurrence of any event contemplated by Section 3(a)(vi)(4) hereof, use their commercially reasonable efforts to prepare and file with the SEC a supplement or post-effective amendment to the applicable Exchange Offer Registration Statement or Shelf Registration Statement or the related Prospectus or any Free Writing Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered (or, to the extent permitted by law, made available) to purchasers of the Registrable Securities, such Prospectus or Free Writing Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company and the Guarantor shall notify the Participating Holders (in the case of a Shelf Registration Statement) and the Initial Purchasers and any Participating Broker-Dealers known to the Company (in the case of an Exchange Offer Registration Statement) to suspend use of the Prospectus or any Free Writing Prospectus as promptly as practicable after the occurrence of such an event, and such Participating Holders, such Participating Broker-Dealers and the Initial Purchasers, as applicable, hereby agree to suspend use of the Prospectus or any Free Writing Prospectus, as the case may be, until the Company and the Guarantor have amended or supplemented the Prospectus or the Free Writing Prospectus, as the case may be, to correct such misstatement or omission;

(xii) a reasonable time prior to the filing of any Registration Statement, any Prospectus, any Free Writing Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus or a Free Writing Prospectus, provide copies of such document to the Representatives and their counsel (and, in the case of a Shelf Registration Statement, to the Participating Holders and their counsel) and make such of the representatives of the Company and the Guarantor as shall be reasonably requested by the Representatives or their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders or their counsel) available for discussion of such document; and the Company and the Guarantor shall not, at any time after initial filing of a Registration Statement, use or file any Prospectus, any Free Writing Prospectus, any amendment of or supplement to a Registration Statement or a Prospectus or a Free Writing Prospectus, of which the Representatives and

 

13


their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders and their counsel) shall not have previously been advised and furnished a copy or to which the Representatives or their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders or their counsel) shall reasonably object in writing;

(xiii) obtain a CUSIP number for all Exchange Securities of each series or Registrable Securities of each series, as the case may be, not later than the initial effective date of a Registration Statement;

(xiv) cause the Indenture to be qualified under the Trust Indenture Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be; cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute, and use their commercially reasonable efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner;

(xv) in the case of a Shelf Registration, make available for inspection by a representative of the Participating Holders (an “ Inspector ”), any Underwriters participating in any disposition pursuant to such Shelf Registration Statement, one firm of attorneys and one firm of accountants designated by a majority in aggregate principal amount of the Registrable Securities held by the Participating Holders and one firm of attorneys and one firm of accountants designated by such Underwriters, at reasonable times and in a reasonable manner, all pertinent financial and other records, documents and properties of the Company and its subsidiaries reasonably requested by any such Inspector, Underwriter, attorney or accountant, and cause the respective officers, directors and employees of the Company and the Guarantor to supply all information reasonably requested by any such Inspector, Underwriter, attorney or accountant in connection with a Shelf Registration Statement and customary due diligence related to the offering and sale of Registrable Securities thereunder, subject to such confidentiality agreements as the Company and the Guarantor may reasonably require and to any applicable privilege;

(xvi) in the case of a Shelf Registration, use their commercially reasonable efforts to cause all Registrable Securities covered thereby to be listed on any securities exchange or any automated quotation system on which similar senior unconvertible debt securities issued by the Company are then listed if requested by the Holders of a majority in principal amount of the Registrable Securities covered by the Shelf Registration Statement, to the extent such Registrable Securities satisfy applicable listing requirements;

(xvii) if reasonably requested by any Participating Holder, promptly include or incorporate by reference in a Prospectus supplement or post-effective

 

14


amendment such information with respect to such Participating Holder as such Participating Holder reasonably requests to be included therein and make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received notification of the matters to be so included in such filing; and

(xviii) in the case of a Shelf Registration, enter into such customary agreements and take all such other actions in connection therewith (including those requested by the Holders of a majority in principal amount of the Registrable Securities covered by the Shelf Registration Statement) in order to expedite or facilitate the disposition of such Registrable Securities including, but not limited to, an Underwritten Offering and in such connection, (1) to the extent possible, make such representations and warranties to the Participating Holders and any Underwriters of such Registrable Securities with respect to the business of the Company and its subsidiaries and the Registration Statement, Prospectus, any Free Writing Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and consistent with the applicable representations and warranties in the Purchase Agreement and confirm the same if and when requested, (2) in connection with an Underwritten Offering, obtain opinions of counsel to the Company and the Guarantor (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Participating Holders and such Underwriters and their respective counsel) addressed to each Participating Holder and Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings and consistent with the opinions delivered pursuant to the Purchase Agreement, (3) in connection with an Underwritten Offering, obtain “comfort” letters from the independent registered public accountants of the Company and the Guarantor (and, if necessary, any other registered public accountant of any subsidiary of the Company or the Guarantor, or of any business acquired by the Company or the Guarantor for which financial statements and financial data are or are required to be included in the Registration Statement) addressed to each Participating Holder (to the extent permitted by applicable professional standards) and Underwriter of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, including but not limited to financial information contained in any preliminary prospectus, Prospectus or Free Writing Prospectus and (4) in connection with an Underwritten Offering, deliver such documents and certificates as may be reasonably requested by the Holders of a majority in principal amount of the Registrable Securities being sold or the Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties made pursuant to clause (1) above and to evidence compliance with any customary conditions contained in an underwriting agreement.

(b) In the case of a Shelf Registration Statement, the Company may require, as a condition to including such Holder’s Registrable Securities in such Shelf

 

15


Registration Statement, each Holder of Registrable Securities to furnish to the Company a Notice and Questionnaire and such other information regarding such Holder and the proposed disposition by such Holder of such Registrable Securities as the Company and the Guarantor may from time to time reasonably request in writing and require such Holder to agree in writing to be bound by all provisions of this Agreement applicable to such Holder. Each Holder of Registrable Securities as to which any Shelf Registration is being effected agrees to furnish promptly to the Company all information required to be disclosed so that the information previously furnished to the Company by such Holder is not materially misleading and does not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.

(c) Each Participating Holder agrees that, upon receipt of any notice from the Company and the Guarantor of the happening of any event of the kind described in Section 3(a)(vi)(2) or Section 3(a)(vi)(4) hereof, such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Shelf Registration Statement until such Participating Holder’s receipt of the copies of the supplemented or amended Prospectus and any Free Writing Prospectus contemplated by Section 3(a)(xi) hereof and, if so directed by the Company and the Guarantor, such Participating Holder will deliver to the Company and the Guarantor all copies in its possession, other than permanent file copies then in such Participating Holder’s possession, of the Prospectus and any Free Writing Prospectus covering such Registrable Securities that is current at the time of receipt of such notice.

(d) If the Company and the Guarantor shall give any notice to suspend the disposition of Registrable Securities pursuant to a Registration Statement, the Company and the Guarantor shall extend the period during which such Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the Holders of such Registrable Securities shall have received copies of the supplemented or amended Prospectus or any Free Writing Prospectus necessary to resume such dispositions or notice that such amendment or supplement is not necessary.

(e) The Participating Holders who desire to do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten Offering, the investment bank or investment banks and manager or managers (each an “ Underwriter ”) that will administer the offering will be selected by the Holders of a majority in principal amount of the Registrable Securities included in such offering, subject in each case to consent by the Company (which shall not be unreasonably withheld or delayed).

(f) No Holder of Registrable Securities may participate in any Underwritten Offering hereunder unless such Holder (a) agrees to sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements.

 

16


4. Participation of Broker-Dealers in Exchange Offer . (a) The Staff has taken the position that any broker-dealer that receives Exchange Securities for its own account in the Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of market-making or other trading activities (a “ Participating Broker-Dealer ”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Securities.

The Company and the Guarantor understand that it is the Staff’s position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their prospectus delivery obligation under the Securities Act in connection with resales of Exchange Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act.

(b) In light of the above, and notwithstanding the other provisions of this Agreement, the Company and the Guarantor agree to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement for a period of up to 180 days after the last Exchange Date (as such period may be extended pursuant to Section 3(d) hereof), if requested by one or more Participating Broker-Dealers, in order to expedite or facilitate the disposition of any Exchange Securities by Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a) above. The Company and the Guarantor further agree that Participating Broker-Dealers shall be authorized to deliver such Prospectus (or, to the extent permitted by law, make available) during such period in connection with the resales contemplated by this Section 4.

(c) The Initial Purchasers shall have no liability to the Company, the Guarantor or any Holder with respect to any request that they may make pursuant to Section 4(b) hereof.

5. Indemnification and Contribution . (a) The Company agrees to indemnify and hold harmless each Initial Purchaser and each Holder, their respective affiliates, directors and officers and each Person, if any, who controls any Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by (1) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not

 

17


misleading, or (2) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, any Free Writing Prospectus or any “issuer information” (“ Issuer Information ”) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission in any such document in reliance upon and in conformity with any information relating to any Initial Purchaser or information relating to any Holder furnished to the Company in writing through the Representatives or any Holder respectively, expressly for use therein.

(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantor, the Initial Purchasers and the other selling Holders, the directors of the Company and the Guarantor, each officer of the Company and the Guarantor who signed the Registration Statement, and each Person, if any, who controls the Company, the Guarantor, any Initial Purchaser and any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Holder furnished to the Company in writing by such Holder expressly for use in any Registration Statement, any Prospectus and any Free Writing Prospectus.

(c) If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be instituted involving any Person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such Person (the “ Indemnified Person ”) shall promptly notify the Person against whom such indemnification may be sought (the “ Indemnifying Person ”) in writing and the Indemnifying Person, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 5 that the Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm (x) for any Initial Purchaser, its

 

18


affiliates, directors and officers and any control Persons of such Initial Purchaser shall be designated in writing by Morgan Stanley and J.P. Morgan, (y) for any Holder, its directors and officers and any control Persons of such Holder shall be designated in writing by the Majority Holders and (z) in all other cases shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding and (B) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any Indemnified Person.

(d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company from the offering of the Securities and the Exchange Securities, on the one hand, and by the Holders from receiving Securities or Exchange Securities registered under the Securities Act, on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company on the one hand and the Holders on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and the Holders on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

(e) The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in

 

19


paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Person in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall a Holder be required to contribute any amount in excess of the amount by which the total price at which the Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations to contribute pursuant to this Section 5 are several and not joint.

(f) The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.

(g) The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person controlling any Initial Purchaser or any Holder, or by or on behalf of the Company or the Guarantor or the officers or directors of or any Person controlling the Company or the Guarantor, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.

6. General .

(a) No Inconsistent Agreements. The Company and the Guarantor represent, warrant and agree that neither the Company nor the Guarantor has entered into, or on or after the date of this Agreement will enter into, any agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof.

(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company has obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or consent; provided that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 5 hereof shall be effective as against any Holder of Registrable Securities unless consented to in writing by such Holder. Any amendments, modifications, supplements, waivers or consents pursuant to this Section 6(b) shall be by a writing executed by each of the parties hereto. Each Holder of Registrable Securities outstanding at the time of any such amendment, modification, supplement, waiver or

 

20


consent thereafter shall be bound by any such amendment, modification, supplement, waiver or consent effected pursuant to this Section 6(b), whether or not any notice, writing or marking indicating such amendment, modification, supplement, waiver or consent appears on the Registrable Securities or is delivered to such Holder. Each Holder may waive compliance with respect to any obligation of the Company or the Guarantor under this Agreement as it may apply or be enforced by such particular Holder.

(c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Company by means of a notice given in accordance with the provisions of this Section 6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in the Purchase Agreement; (ii) if to the Company and the Guarantor, initially at the applicable address set forth in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c); and (iii) to such other persons at their respective addresses as provided in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c). All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; three Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if telecopied; and on the next Business Day if timely delivered to an air courier guaranteeing overnight delivery.

(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as Initial Purchasers) shall have no liability or obligation to the Company or the Guarantor with respect to any failure by a Holder to comply with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement.

(e) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the agreements made hereunder between the Company and the Guarantor, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder.

(f) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

 

21


(g) Headings. The headings in this Agreement are for convenience of reference only, are not a part of this Agreement and shall not limit or otherwise affect the meaning hereof.

(h) Governing Law. This Agreement, and any claim, controversy or dispute arising under or related to this Agreement, shall be governed by and construed in accordance with the laws of the State of New York.

(i) Entire Agreement; Severability. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The Company, the Guarantor and the Initial Purchasers shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, void or unenforceable provisions.

7. Termination of Obligations of Guarantor . Notwithstanding any other provisions of this Agreement, it is acknowledged that the Guarantees will terminate concurrently with the completion of the Separation and, accordingly, it is agreed that, concurrently with the termination of the Guarantees, all obligations of the Guarantor under this Agreement shall terminate and all references to the Guarantor in this Agreement shall be deemed to be eliminated.

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

MARATHON PETROLEUM CORPORATION,
 

by

 

/s/ Paul C. Reinbolt

      Name: Paul C. Reinbolt
      Title:   Vice President

 

MARATHON OIL CORPORATION,

 

by

 

/s/ Janet F. Clark

      Name: Janet F. Clark
      Title:   Chief Financial Officer

Confirmed and accepted as of the date first above written:

MORGAN STANLEY & CO. INCORPORATED

J.P. MORGAN SECURITIES LLC,

For themselves and on behalf of the

several Initial Purchasers

 

BY: MORGAN STANLEY & CO. INCORPORATED,
 

by

 

/s/ Yurij Slyz

      Name: Yurij Slyz
      Title:   Executive Director
BY: J.P. MORGAN SECURITIES LLC,
 

by

 

/s/ Maria Sramek

      Name: Maria Sramek
      Title:   Executive Director

 

23

Exhibit 4.5

EXECUTION VERSION

 

 

$2,000,000,000 REVOLVING CREDIT AGREEMENT

dated as of

March 11, 2011

among

MARATHON PETROLEUM CORPORATION

The Lenders Party Hereto

and

JPMORGAN CHASE BANK,

NATIONAL ASSOCIATION

as Administrative Agent

 

 

J.P. MORGAN SECURITIES LLC

and

MORGAN STANLEY SENIOR FUNDING, INC.,

as Joint Lead Arrangers and Joint Bookrunners

MORGAN STANLEY SENIOR FUNDING, INC.,

as Syndication Agent

BANK OF AMERICA, N.A.,

CITIGROUP GLOBAL MARKETS INC.

and

THE ROYAL BANK OF SCOTLAND PLC

as Co-Documentation Agents

 

 


TABLE OF CONTENTS

 

          Page  
ARTICLE I   
Definitions   
1   

SECTION 1.01.

   Defined Terms      1   

SECTION 1.02.

   Classification of Loans and Borrowings      18   

SECTION 1.03.

   Terms Generally      18   

SECTION 1.04.

   Accounting Terms; GAAP      19   
ARTICLE II   
The Credits   
19   
SECTION 2.01.    Commitments      19   
SECTION 2.02.    Loans and Borrowings      20   
SECTION 2.03.    Requests for Revolving Borrowings      20   
SECTION 2.04.    Swingline Loans      21   
SECTION 2.05.    Letters of Credit      22   
SECTION 2.06.    Funding of Borrowings      25   
SECTION 2.07.    Interest Elections      26   
SECTION 2.08.    Termination and Reduction of Commitments      27   
SECTION 2.09.    Repayment of Loans; Evidence of Debt      27   
SECTION 2.10.    Prepayment of Loans      28   
SECTION 2.11.    Fees      28   
SECTION 2.12.    Interest      29   
SECTION 2.13.    Alternate Rate of Interest      30   
SECTION 2.14.    Increased Costs      30   
SECTION 2.15.    Break Funding Payments      31   
SECTION 2.16.    Taxes      32   
SECTION 2.17.    Payments Generally; Pro Rata Treatment; Sharing of Set-offs      35   
SECTION 2.18.    Mitigation Obligations; Replacement of Lenders      36   
SECTION 2.19.    Defaulting Lenders      37   
SECTION 2.20.    Extension of Maturity Date      38   
SECTION 2.21.    Commitment Increases      39   
ARTICLE III   
Representations and Warranties   
40   
SECTION 3.01.    Organization; Powers      40   

 

 

i


TABLE OF CONTENTS

(continued)

 

          Page  
SECTION 3.02.    Authorization; Enforceability      40   
SECTION 3.03.    Governmental Approvals; No Conflicts      41   
SECTION 3.04.    Financial Condition; No Material Adverse Change      41   
SECTION 3.05.    Properties      41   
SECTION 3.06.    Litigation and Environmental Matters      41   
SECTION 3.07.    Compliance with Laws; No Default      42   
SECTION 3.08.    Margin Regulations; Investment Company Status      42   
SECTION 3.09.    Taxes      42   
SECTION 3.10.    ERISA      42   
SECTION 3.11.    Disclosure      42   
SECTION 3.12.    Subsidiaries      42   
SECTION 3.13.    Separation Transactions      43   
ARTICLE IV   
Conditions   
43   
SECTION 4.01.    Effective Date      43   
SECTION 4.02.    Each Credit Event      46   
SECTION 4.03.    Conditions Precedent to Each Incremental Commitment Effective Date      47   
ARTICLE V   
Affirmative Covenants   
47   
SECTION 5.01.    Financial Statements; Ratings Change and Other Information      47   
SECTION 5.02.    Notices of Material Events      48   
SECTION 5.03.    Existence; Conduct of Business      49   
SECTION 5.04.    Payment of Taxes and other Obligations      49   
SECTION 5.05.    Maintenance of Properties; Insurance      49   
SECTION 5.06.    Books and Records; Inspection Rights      49   
SECTION 5.07.    Compliance with Laws      50   
SECTION 5.08.    Use of Proceeds and Letters of Credit      50   
ARTICLE VI   
Negative Covenants   
50   
SECTION 6.01.    Indebtedness      50   
SECTION 6.02.    Liens and Sale and Leaseback Transactions      51   

 

ii


TABLE OF CONTENTS

(continued)

 

          Page  

SECTION 6.03.

   Fundamental Changes      52   

SECTION 6.04.

   Transactions with Affiliates      53   

SECTION 6.05.

   Restrictive Agreements      53   

SECTION 6.06.

   Fiscal Year; Accounting Principles      54   

SECTION 6.07.

   Minimum Interest Coverage Ratio      54   

SECTION 6.08.

   Maximum Consolidated Leverage Ratio      54   
ARTICLE VII   
Events of Default   
54   
ARTICLE VIII   
The Administrative Agent   
56   
ARTICLE IX   
Miscellaneous   
58   

SECTION 9.01.

   Notices      58   

SECTION 9.02.

   Waivers; Amendments      59   

SECTION 9.03.

   Expenses; Indemnity; Damage Waiver      60   

SECTION 9.04.

   Successors and Assigns      61   

SECTION 9.05.

   Survival      64   

SECTION 9.06.

   Counterparts; Integration; Effectiveness      65   

SECTION 9.07.

   Severability      65   

SECTION 9.08.

   Right of Setoff      65   

SECTION 9.09.

   Subsidiary Guarantees      65   

SECTION 9.10.

   Governing Law; Jurisdiction; Consent to Service of Process      66   

SECTION 9.11.

   WAIVER OF JURY TRIAL      66   

SECTION 9.12.

   Headings      66   

SECTION 9.13.

   Confidentiality      66   

SECTION 9.14.

   Interest Rate Limitation      67   

SECTION 9.15.

   USA PATRIOT Act      68   

 

iii


TABLE OF CONTENTS

(continued)

 

    Page
SCHEDULES :      
Schedule 2.01 — Commitments  
Schedule 3.06 — Disclosed Matters  
Schedule 3.12 — Subsidiaries  
Schedule 6.01 — Existing Indebtedness  
Schedule 6.02 — Existing Liens  
Schedule 6.04 — Transactions with Affiliates  
Schedule 6.05 — Existing Restrictions  
EXHIBITS :  
Exhibit A — Form of Assignment and Assumption  
Exhibit B — Form of Borrowing Request  
Exhibit C — Form of Interest Election Request  
Exhibit D — Form of Note  
Exhibit E-1 — Form of U.S. Tax Certificate (For Non-U.S. Lenders That Are Not Partnerships for U.S. Federal Income Tax Purposes)  
Exhibit E-2 — Form of U.S. Tax Certificate (For Non-U.S. Lenders That Are Partnerships for U.S. Federal Income Tax Purposes)  
Exhibit E-3 — Form of U.S. Tax Certificate (For Non-U.S. Participants That Are Not Partnerships for U.S. Federal Income Tax Purposes)  
Exhibit E-4 — Form of U.S. Tax Certificate (For Non-U.S. Participants That Are Partnerships for U.S. Federal Income Tax Purposes)  
Exhibit F-1 — Form of Incremental Commitment Activation Notice  
Exhibit F-2 — Form of New Lender Supplement  
Exhibit G — Form of Subsidiary Guarantee  

 

iv


REVOLVING CREDIT AGREEMENT dated as of March 11, 2011, among MARATHON PETROLEUM CORPORATION, the LENDERS party hereto, and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent.

The parties hereto agree as follows:

ARTICLE I

Definitions

SECTION 1.01. Defined Terms . As used in this Agreement, the following terms have the meanings specified below:

ABR ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

Act ” has the meaning assigned to such term in Section 9.15.

Adjusted LIBO Rate ” means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

Administrative Agent ” means JPMorgan Chase Bank, National Association, in its capacity as administrative agent for the Lenders hereunder, and any successor in such capacity.

Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

Aggregate Commitments ” means, at any time, the sum of the Commitments of all Lenders at such time. The amount of the Aggregate Commitments as of the date hereof is $2,000,000,000.

Agreement ” means this Revolving Credit Agreement, as it may from time to time be amended, modified, restated or supplemented.

Alternate Base Rate ” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus  1 / 2 of 1% and (c) the LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided , that for purposes of this definition, the LIBO Rate for any day shall be based on the rate appearing on Page LIBOR01 of the Reuters screen (or on any successor or substitute page of such service, or any successor or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the


Federal Funds Effective Rate or the LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the LIBO Rate, respectively.

Applicable Percentage ” means, with respect to any Lender, the percentage of the Aggregate Commitments (disregarding, to the extent applicable pursuant to Section 2.19, any Defaulting Lender’s Commitment) represented by such Lender’s Commitment. If all of the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any permitted assignments made hereunder and to any Lender’s status as a Defaulting Lender at the time of determination.

Applicable Rate ” means, for any day, with respect to any ABR Loan or Eurodollar Revolving Loan, or with respect to the commitment fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “ABR Spread”, “Eurodollar Spread” or “Commitment Fee Rate”, as the case may be, based upon the ratings by Moody’s and S&P, respectively, applicable on such date to the Index Debt:

 

Index Debt Ratings

(S&P / Moody’s):

   ABR
Spread
    Eurodollar
Spread
    Commitment Fee
Rate
 

Level I

³ BBB+ / Baa1

     0.750     1.750     0.250

Level II

³ BBB / Baa2

     1.000     2.000     0.300

Level III

³ BBB- / Baa3

     1.250     2.250     0.350

Level IV

³ BB+ / Ba1

     1.500     2.500     0.400

Level V

£ BB / Ba2

     2.000     3.000     0.500

For purposes of the foregoing, (a) if either S&P or Moody’s shall not have in effect a rating for the Index Debt (other than by reason of the circumstances referred to in the next succeeding paragraph of this definition), then such rating agency shall be deemed to have established a rating in Level V, (b) if the ratings established or deemed to have been established by S&P and Moody’s for the Index Debt shall fall within different Levels, the Applicable Rate shall be based on the higher of the two ratings unless one of the two ratings is two or more Levels lower than the other, in which case the Applicable Rate shall be determined by reference to the Level one rating lower than the higher of the two ratings, and (c) if the ratings established or deemed to have been established by Moody’s and S&P for the Index Debt shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such change shall be effective as of the date on which it is first announced by the applicable rating agency, irrespective of when notice of such change shall have been furnished by the Borrower to the Administrative Agent and the Lenders pursuant to Section 5.01 or otherwise. Each change in the Applicable Rate shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change.

 

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If the rating system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating most recently in effect prior to such change or cessation.

If both of Moody’s and S&P shall at any time fail to have in effect a rating for the Index Debt (other than by reason of the circumstances referred to in the immediately preceding paragraph of this definition), the Borrower may seek and obtain an applicable bank loan rating from S&P and/or Moody’s, and on and after the date on which such bank loan rating is obtained until such time (if any) that a rating for the Index Debt becomes effective again, the Applicable Rate shall be based on such bank loan rating or ratings in the same manner as provided herein with respect to the ratings for the Index Debt. For any day when no rating for the Index Debt is in effect (other than by reason of the circumstances referred to in the immediately preceding paragraph of this definition) and no applicable bank loan rating has been obtained, the Applicable Rate shall be the rates set forth opposite Level V on the pricing grid above.

Approved Fund ” has the meaning assigned to such term in Section 9.04.

Arrangers ” means J.P. Morgan Securities LLC and Morgan Stanley Senior Funding, Inc.

Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent in consultation with the Borrower.

Attributable Debt ” means, as of any date of determination, the present value (discounted semiannually at an interest rate implicit in the terms of the relevant lease) of the obligation of a lessee for rental payments pursuant to any Sale and Leaseback Transaction (reduced by the amount of the rental obligations of any sublessee of all or part of the same property) during the remaining term of such Sale and Leaseback Transaction (including any period for which the lease relating thereto has been extended), such rental payments not to include amounts payable by the lessee for maintenance and repairs, insurance, taxes, assessments and similar charges and for contingent rents (such as those based on sales). In the case of any Sale and Leaseback Transaction in which the lease is terminable by the lessee upon the payment of a penalty, such rental payments shall be considered for purposes of this definition to be the lesser of (a) the rental payments to be paid under such Sale and Leaseback Transaction until the first date (after the date of such determination) upon which it may be so terminated plus the then applicable penalty upon such termination and (b) the rental payments required to be paid during the remaining term of such Sale and Leaseback Transaction (assuming such termination provision is not exercised).

Audited Financial Statements ” has the meaning assigned to such term in Section 4.01(j).

Availability Period ” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.

Bankruptcy Event ” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment; provided , that a Bankruptcy Event shall not result solely by virtue of

 

3


any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, so long as such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

Borrower ” means Marathon Petroleum Corporation, a Delaware corporation.

Borrowing ” means (a) Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect or (b) a Swingline Loan.

Borrowing Request ” means a request by the Borrower for a Revolving Borrowing in accordance with Section 2.03, which, if in writing, shall be substantially in the form of Exhibit B.

Business Day ” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided , that when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

Capital Lease Obligations ” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP (as GAAP was in effect on December 31, 2010), and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP (as GAAP was in effect on December 31, 2010).

Cash Equivalents ” means:

(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;

(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;

(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above;

 

4


(e) deposits in money market funds which invest 95% or more of their funds in investments described in any of clauses (a), (b) and (c) above; and

(f) other investments which the Administrative Agent and the Borrower may approve in writing from time to time.

Change in Control ” means (a) the acquisition after the consummation of the Stock Distribution of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of Rule 13d-5 of the Exchange Act as in effect on the date hereof), of Equity Interests representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Borrower entitled to vote in the election of directors (other than such Equity Interests having such power only by reason of the happening of a contingency which contingency has not yet happened); (b) during any period of twenty-five consecutive months, commencing on or after the Effective Date, a majority of the members of the board of directors of the Borrower ceases to be composed of individuals (i) who were members of such board on the first day of such period, (ii) whose election, nomination or appointment to such board was approved by individuals referred to in clause (i) above constituting at the time of such election, nomination or appointment at least a majority of such board or (iii) whose election, nomination or appointment to such board was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election, nomination or appointment at least a majority of such board; or (c) the occurrence of a “Change of Control” event as set forth in clause (2) of the definition of “Change of Control” in the Indenture with respect to the Senior Notes dated as of February 1, 2011.

Change in Law ” means the occurrence, after the date of this Agreement (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following (a) the adoption of any law, rule, regulation or treaty by any Governmental Authority, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided , however , that for purposes of this Agreement, all requests, rules, guidelines or directives made or issued on or prior to the date of this Agreement by any Governmental Authority in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act are deemed to have gone into effect and adopted thirty (30) days after the date of this Agreement.

Charges ” has the meaning assigned to such term in Section 9.14.

Class ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.

Code ” means the Internal Revenue Code of 1986, as amended from time to time.

Commitment ” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as applicable, as such amount may be (a) reduced from time to time pursuant to Section 2.08, (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04 and (c) increased by any Commitment Increase from time to time pursuant to Section 2.21. The initial amount of each Lender’s Commitment is set forth on Schedule

 

5


2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as applicable.

Commitment Increase ” has the meaning assigned to such term in Section 2.21.

Consolidated EBITDA ” means, for any period, (a) Consolidated Net Income for such period plus , (b) to the extent reducing Consolidated Net Income for such period, and without duplication: (i) net federal, state, local or foreign income or franchise tax expense; (ii) net interest expense (including amortization or write-off of debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness), amortization of capitalized interest and the net amount accrued (whether or not actually paid) pursuant to any interest rate protection agreement during such period (or minus the net amount receivable (whether or not actually received) during such period); (iii) depreciation, depletion and amortization expense, including amortization of intangibles; (iv) extraordinary expenses or loss and unusual or non-recurring non-cash expenses or losses (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, (x) non-cash losses from dispositions not in the ordinary course of business and (y) goodwill or intangible asset impairment); (v) transaction expenses directly related to the Transactions; and (vi) any other non-cash charges to income (including, but not limited to, stock based compensation and any non-cash charges resulting from the decline in the value of inventory due to the application of the lower of cost or market valuation method); minus , (c) to the extent included in the calculation of Consolidated Net Income for such period, without duplication, the sum of: (i) any extraordinary income or gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on dispositions not in the ordinary course of business); (ii) any cash expenditures during such period on account of any non-cash item which was added back to Consolidated EBITDA during any prior period with respect to which a calculation of Consolidated EBITDA was made under this Agreement (and provided that the cash expenditure does not impact Consolidated Net Income in the period paid); and (iii) any other unusual or non-recurring non-cash income or gains, all as determined for the Borrower and its Subsidiaries on a consolidated basis.

Consolidated Interest Expense ” means, for any period, total interest expense of the Borrower and its Subsidiaries for such period (excluding interest expense attributable to Securitization Indebtedness) determined on a consolidated basis in accordance with GAAP as set forth in the Borrower’s consolidated income statement for such period.

Consolidated Net Income ” means, for any period, the net income (loss) of the Borrower and its Subsidiaries on a consolidated basis determined in accordance with GAAP.

Consolidated Net Tangible Assets ” means, at any date, total assets of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP minus (a) current liabilities (excluding short-term Indebtedness and the current portion of long-term Indebtedness) of the Borrower and its Subsidiaries and (b) intangible assets of the Borrower and its Subsidiaries, in each case determined on a consolidated basis in accordance with GAAP, as reflected in the financial statements of the Borrower most recently delivered to the Administrative Agent and the Lenders.

Consolidated Total Indebtedness ” means, Indebtedness (excluding Securitization Indebtedness) of the Borrower and its Subsidiaries, on a consolidated basis, of the type specified in clauses (a), (b) (c), (d), and (g), non-contingent obligations of the type specified in clauses (h) and (i), and all Guarantees of the foregoing pursuant to clause (f), in each case as set forth in the definition of “Indebtedness”.

 

6


Contribution ” means the direct or indirect transfer (in one or more transactions) by MRO and its subsidiaries to the Borrower of the portions of the Contribution Business that were not owned by the Borrower or any of its Subsidiaries prior to such transfer.

Contribution Business ” means certain assets, liabilities and operations of MRO’s and certain of its subsidiaries’ crude oil and petroleum products refining, marketing and transportation business (along with certain related miscellaneous assets and liabilities), and the Equity Interests of certain entities holding certain of such assets, liabilities and operations.

Contribution Documents ” has the meaning assigned to such term in Section 4.01(g).

Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

Credit Contact ” means, with respect to each Credit Party, such Person designated in the Administrative Questionnaire or other notice provided to the Administrative Agent as the Credit Contact for such Credit Party.

Credit Party ” means the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender.

Default ” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

Defaulting Lender ” means any Lender that (a) has failed, within three Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, unless such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (ii) fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless (in the case of this clause (iii)) such Lender notifies the Administrative Agent in writing that such failure is the result of a good faith dispute with respect to the requirement to pay such amount, (b) has notified the Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Borrower or a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the Borrower’s or such Credit Party’s receipt of such certification in form and substance satisfactory to the Borrower or such Credit Party, as applicable, and the Administrative Agent, or (d) has become the subject of a Bankruptcy Event.

Disclosed Matters ” means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06 (as such Schedule may be updated on or prior to the Effective Date in accordance with Section 4.01(n)).

dollars ” or “ $ ” refers to lawful money of the United States of America.

 

7


Effective Date ” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

Environmental Laws ” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.

Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) any Environmental Law with respect to the generation, use handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Equity Interests ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest (other than any debt security which by its terms is convertible at the option of the holder into Equity Interests, to the extent such holder has not so converted such debt security).

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

ERISA Event ” means (a) any “ reportable event ”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) the existence with respect to any Plan of an “ accumulated funding deficiency ” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

Eurodollar ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

 

8


Event of Default ” has the meaning assigned to such term in Article VII.

Exchange Act ” means the United States Securities Exchange Act of 1934, as amended.

Excluded Taxes ” means, with respect to any payment made by any Loan Party under any Loan Document, any of the following Taxes imposed on or with respect to a Recipient: (a) income or franchise Taxes imposed on (or measured by) net income or net profits (or franchise Taxes imposed in lieu of net income Taxes) by the United States of America, or by the jurisdiction under the laws of which such Recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits Taxes imposed by the United States of America or any similar Taxes imposed by any other jurisdiction described in clause (a) above, (c) in the case of a Non-U.S. Lender (other than an assignee pursuant to a request by the Borrower under Section 2.18(b)), any U.S. Federal withholding Taxes resulting from any law in effect on the date such Non-U.S. Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Non-U.S. Lender’s failure to comply with Section 2.16(f), except to the extent that such Non-U.S. Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding Taxes pursuant to Section 2.16(a), (d) in the case of a Lender that is a U.S. Person, any withholding tax that is attributable to the Lender’s failure to comply with Section 2.16(f), (e) any Taxes imposed with respect to the requirements of FATCA and (f) Other Connection Taxes.

Existing Maturity Date ” has the meaning assigned to such term in Section 2.20(a).

Extending Lender ” has the meaning assigned to such term in Section 2.20(b).

Facility ” means the revolving credit facility provided for herein.

FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement and any regulations or official interpretations thereof.

Federal Funds Effective Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

Financial Officer ” means the chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller of the Borrower.

GAAP ” means generally accepted accounting principles in the United States of America as in effect from time to time.

Governmental Authority ” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

Guarantee ” of or by any Person (the “ guarantor ”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness

 

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or other obligation of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided , that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.

Guarantor ” means, at any time, each Subsidiary of the Borrower that is party to a Subsidiary Guarantee as a guarantor.

Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

Incremental Commitment Activation Notice ” means a notice substantially in the form of Exhibit F-1.

Incremental Commitment Effective Date ” means any Business Day designated as such in an Incremental Commitment Activation Notice or, if later, the first date on which each condition set forth in Section 4.03 shall have been satisfied or waived with respect to the Commitment Increase set forth therein.

Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) accounts payable and accrued liabilities incurred in the ordinary course of business and (ii) amounts which are being contested in good faith and for which reserves in conformity with GAAP have been provided), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person (other than, in the case of property owned or acquired by the Borrower or any Subsidiary, Liens on Equity Interests in Joint Ventures which are permitted under Section 6.02(a)(ix)), whether or not the Indebtedness secured thereby has been assumed, but only to the extent of such property’s fair market value, (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is legally liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. The Indebtedness of any Person shall not include endorsements of checks, bills of exchange and other instruments for deposit or collection in the ordinary course of business.

Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by any Loan Party under any Loan Document and (b) Other Taxes.

 

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Index Debt ” means senior, unsecured, long-term indebtedness for borrowed money of the Borrower that is not guaranteed by any other Person or subject to any other credit enhancement.

Information ” has the meaning assigned to such term in Section 3.11.

Information Memorandum ” means the Confidential Information Memorandum dated January, 2011, relating to the Borrower and the Transactions.

Interest Election Request ” means a request by the Borrower to convert or continue a Revolving Borrowing in accordance with Section 2.07, which, if in writing, shall be substantially in the form of Exhibit C.

Interest Payment Date ” means (a) with respect to any ABR Loan (other than a Swingline Loan), the last day of each March, June, September and December, (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and (c) with respect to any Swingline Loan, the day that such Loan is required to be repaid.

Interest Period ” means with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Borrower may elect; provided , that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (b) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

IRS ” means the United States Internal Revenue Service.

Issuing Bank ” means each of JPMorgan Chase Bank, National Association, any other Lender identified on the signature pages hereto as an “Issuing Bank” and any other Lender that agrees with the Borrower and the Administrative Agent to act as an Issuing Bank, in each case, in its capacity as an issuer of Letters of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

Joint Venture ” means a joint venture entity, the Equity Interests of which are owned by the Borrower or a Subsidiary with a third party so long as such joint venture entity does not constitute a Subsidiary.

Joint Venture Obligations ” means, with respect to any Joint Venture owned in part by the Borrower or any Subsidiary, Indebtedness of such Joint Venture that is non-recourse to the Borrower or any Subsidiary or to any property of the Borrower or any Subsidiary other than the Equity Interests in such Joint Venture.

 

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LC Disbursement ” means a payment made by an Issuing Bank pursuant to a Letter of Credit issued by such Issuing Bank.

LC Exposure ” means, with respect to any Lender at any time, such Lender’s Applicable Percentage of the Total LC Exposure at such time.

Lenders ” means (a) the Persons listed on Schedule 2.01, (b) any New Lender that shall have become a party hereto pursuant to Section 2.21 and (c) any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.

Letter of Credit ” means any letter of credit issued pursuant to this Agreement.

LIBO Rate ” means, for any Interest Period, the rate appearing on Page LIBOR01 of the Reuters screen (or on any successor or substitute page of such service, or any successor or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period. In the event that such rate is not available at such time for any reason, then the “ LIBO Rate ” for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset or (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

Loan ” means a Revolving Loan or a Swingline Loan, as the context may require.

Loan Documents ” means this Agreement, each Subsidiary Guarantee (if any) and each promissory note executed and delivered by the Borrower under Section 2.09(e) (if any).

Loan Parties ” means the Borrower and each Guarantor.

Material Adverse Change ” means any event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect.

Material Adverse Effect ” means a material adverse effect on (a) the business, operations, property or financial condition of the Borrower and its Subsidiaries and of the Contribution Business, taken as a whole, (b) the ability of the Borrower and the Guarantors to perform their obligations under the Loan Documents or to consummate the Transactions or (c) the rights and remedies of the Administrative Agent and the Lenders under the Loan Documents (it being understood that in no event shall any of the following constitute a Material Adverse Effect: (A) the sale by certain subsidiaries of MRO of their St. Paul Park, Minnesota refinery (including associated terminal, tankage and pipeline investments) and 166 Speedway SuperAmerica retail outlets, plus related inventories, and the application of the proceeds

 

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thereof and (B) the internal reorganizations (within the consolidated group of MRO and its consolidated subsidiaries, including the Borrower) in contemplation of the Separation to the extent effected substantially in accordance with the terms disclosed to the Arrangers in writing prior to the date hereof).

Material Indebtedness ” means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding $100,000,000. For purposes of determining Material Indebtedness, the “ principal amount ” of the obligations of the Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time.

Maturity Date ” means the fourth anniversary of the Effective Date, subject to the extension thereof with respect to all or part of the Commitments pursuant to Section 2.20.

Maximum Rate ” has the meaning assigned to such term in Section 9.14.

Moody’s ” means Moody’s Investors Service, Inc., or any successor to the rating agency business thereof.

MRO ” means Marathon Oil Corporation, a Delaware corporation.

Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

Net Consolidated Total Indebtedness ” means, at any time, (a) Consolidated Total Indebtedness at such time minus (b) the lesser of (i) unrestricted cash of the Loan Parties (other than any cash proceeds of Securitization Indebtedness) at such time and (ii) $500,000,000.

New Lender ” has the meaning assigned to such term in Section 2.21.

New Lender Supplement ” has the meaning assigned to such term in Section 2.21.

Non-Extending Lender ” means, with respect to any extension of the Maturity Date pursuant to Section 2.20, any Lender that has not consented to or has been deemed not to have consented to such extension pursuant to Section 2.20.

Non-Guarantor Subsidiary ” means a Subsidiary of the Borrower that is not a Guarantor hereunder.

Non-U.S. Lender ” means a Lender that is not a U.S. Person.

Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising from such Recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan Document).

Other Taxes ” means any present or future stamp, court, documentary, intangible, recording, filing or similar excise or property Taxes that arise from any payment made under, from the

 

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execution, delivery, performance, enforcement or registration of, or from the registration, receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are imposed with respect to an assignment (other than an assignment under Section 2.18(b)).

Participant ” has the meaning assigned to such term in Section 9.04.

Participant Register ” has the meaning assigned to such term in Section 9.04(c).

PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

Permitted Encumbrances ” means:

(a) Liens imposed by law for Taxes that (i) are not yet due, (ii) are not more than sixty (60) days past due and not subject to penalties for non-payment, or (iii) are being contested in compliance with Section 5.04;

(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, workmen’s, landlords’ and other like Liens arising in the ordinary course of business (or deposits to obtain the release of such Liens) and securing obligations that are not overdue for more than sixty (60) days or, if so overdue, that are being contested in compliance with Section 5.04;

(c) pledges and deposits made in compliance with, or deemed trusts arising in connection with, workers’ compensation, unemployment insurance and other social security laws or regulations;

(d) Liens and deposits to secure the performance of bids, trade contracts, government contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

(e) judgment or attachment liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VII, or Liens created by or existing from any litigation or legal proceeding that are currently being contested in good faith by appropriate proceedings, and for which adequate reserves have been made to the extent required by GAAP;

(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of the Borrower or any Subsidiary;

(g) any Lien in favor of the United States of America, any state, or any agency, department, political subdivision or other instrumentality of either, to secure partial, progress or advance payments to the Borrower or any Subsidiary of the Borrower pursuant to the provisions of any contract or any statute;

(h) Liens created or evidenced by or resulting from precautionary financing statements filed by lessors of property (but only relating to the leased property), other than in connection with capital leases and sale-leasebacks not otherwise permitted under this Agreement;

(i) Liens imposed by ERISA which are being contested in good faith by appropriate proceedings and reserves in conformity with GAAP have been provided therefor; and

 

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(j) Liens in favor of banks having a right of setoff, revocation, refund or chargeback with respect to money or instruments of the Borrower or any of its Subsidiaries on deposit with or in the possession of such bank, in each case in the ordinary course of business;

provided , that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness of the type included in Consolidated Total Indebtedness.

Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Plan ” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “ employer ” as defined in Section 3(5) of ERISA.

Prime Rate ” means the rate of interest per annum from time to time published in the “Money Rates” section of The Wall Street Journal as being the “U.S. prime rate” or, if more than one rate is so published as the U.S. prime rate, then the average of such rates (each change in the U.S. prime rate to be effective as of the date of publication in The Wall Street Journal of a “U.S. prime rate” that is different from that published on the preceding domestic Business Day); provided , that in the event that The Wall Street Journal shall, for any reason, fail or cease to publish the U.S. prime rate, the Prime Rate shall be the rate of interest publicly announced from time to time by JPMorgan Chase Bank, National Association as its prime rate in effect at its principal office located in New York, New York (each such change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective).

Pro Forma Basis ” means, with respect to any determination for any period, that such determination shall be made giving pro forma effect to each acquisition or disposition consummated during such period, together with all transactions relating thereto consummated during such period (including any incurrence, assumption, refinancing or repayment of Indebtedness), as if such acquisition or disposition and related transactions had been consummated on the first day of such period, in each case based on historical results accounted for in accordance with GAAP and, to the extent applicable, reasonable assumptions that are specified in details in the relevant compliance certificate, financial statement or other document provided to the Administrative Agent or any Lender in connection herewith in accordance with Regulation S-X of the Securities Act of 1933.

Recipient ” means, as applicable, (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank.

Register ” has the meaning assigned to such term in Section 9.04.

Registration Statement ” means the Registration Statement on Form 10, under the Exchange Act, of the Borrower filed with the SEC on January 25, 2011, including the exhibits filed therewith, without giving effect to any subsequent amendments filed thereto unless approved by the Arrangers in their reasonable discretion.

Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

 

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Required Lenders ” means, at any time, subject to Section 2.19, Lenders having Revolving Credit Exposures and unused Commitments representing more than 50% of the sum of the Total Revolving Credit Exposure and unused Commitments at such time.

Responsible Officer ” means, with respect to any Person, the president, the chief financial officer, the treasurer or the principal accounting officer of such Person.

Revolving Credit Exposure ” means, with respect to any Lender at any time, the sum of (a) the outstanding principal amount of such Lender’s Revolving Loans at such time, plus (b) such Lender’s LC Exposure at such time, plus (c) (except for the purposes of calculating the commitment fee in accordance with Section 2.11(a)) such Lender’s Swingline Exposure at such time.

Revolving Loan ” has the meaning assigned to such term in Section 2.01.

S&P ” means Standard & Poor’s Ratings Group, a division of McGraw-Hill, Inc., or any successor to the ratings agency business thereof.

Sale and Leaseback Transaction ” means any arrangement with any Person providing for the leasing by the Borrower or any Subsidiary of any property (whether such property is now owned or hereafter acquired) that has been or is to be sold or transferred by the Borrower or such Subsidiary to such Person, other than (a) temporary leases for a term, including renewals at the option of the lessee, of not more than three years, (b) leases between the Borrower and a Subsidiary or between Subsidiaries and (c) leases of property executed by the time of, or within 180 days after the latest of, the acquisition, the completion of construction or improvement or the commencement of commercial operation of such property.

SEC ” means the United States Securities and Exchange Commission, or any Governmental Authority succeeding to the functions of said Commission.

Securitization Indebtedness ” means any Indebtedness under any Securitization Transaction.

Securitization Receivables ” has the meaning assigned to such term in the definition of “Securitization Transaction”.

Securitization Subsidiary ” means, with respect to any Person, any special purpose subsidiary or special purpose Affiliate to which such Person sells, conveys or otherwise transfers, or grants a Lien on Securitization Receivables pursuant to a Securitization Transaction.

Securitization Transaction ” means any financing transaction or series of financing transactions (including factoring arrangements) in connection with which the Borrower or any Affiliate of the Borrower may sell, convey or otherwise transfer, or grant a Lien on, accounts, payments, receivables, accounts receivable, rights to future lease payments or residuals or similar rights to payment and in each case any related assets (the “ Securitization Receivables ”) to a Securitization Subsidiary.

Senior Notes ” means, collectively, the Borrower’s 3  1 / 2 % Senior Notes due 2016, 5  1 / 8 % Senior Notes due 2021 and 6  1 / 2 % Senior Notes due 2041.

Separation ” means, collectively, the Contribution and the Stock Distribution.

Separation Documents ” has the meaning assigned to such term in Section 4.01(g).

 

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Significant Subsidiary ” has the meaning ascribed to such term under Regulation S-X promulgated under the Exchange Act. Unless otherwise specified, all references herein to a Significant Subsidiary or Significant Subsidiaries shall refer to a Significant Subsidiary or Significant Subsidiaries of the Borrower.

Special Distribution ” means the direct or indirect payment of one or more distributions (which distribution or distributions may be in the form of repayment of intercompany Indebtedness and/or other distributions of property or assets) by the Borrower or any of its Subsidiaries to MRO or any of its subsidiaries on or prior to the Effective Date, in an aggregate amount such that, after giving effect to all such distributions, the Borrower and its Subsidiaries shall have an aggregate amount of cash and cash equivalents on hand in an amount at least equal to $750,000,000.

Statutory Reserve Rate ” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “ Eurocurrency Liabilities ” in Regulation D of the Board). Such reserve percentage shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

Stock Distribution ” means, collectively, (i) the distribution by Marathon Oil Company to MRO of 100% of the outstanding shares of the Borrower’s common stock and (ii) the distribution by MRO to its shareholders of 100% of the outstanding shares of the Borrower’s common stock.

Stock Distribution Documents ” has the meaning assigned to such term in Section 4.01(g).

subsidiary ” means, with respect to any Person (the “ parent ”) at any date, any corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, directly or indirectly, owned, controlled or held by the parent.

Subsidiary ” means any subsidiary of the Borrower, other than LOCAP LLC and LOOP LLC, for so long as LOCAP LLC or LOOP LLC, respectively, is not wholly owned, directly or indirectly, by the Borrower.

Subsidiary Guarantee ” means a guarantee of the Borrower’s obligations hereunder in substantially the form of Exhibit G or any other form approved by the Administrative Agent.

Swap Agreement ” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided, that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.

 

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Swingline Exposure ” means, with respect to any Lender at any time, such Lender’s Applicable Percentage of the aggregate principal amount of all Swingline Loans outstanding at such time.

Swingline Lender ” means JPMorgan Chase Bank, National Association, in its capacity as lender of Swingline Loans hereunder.

Swingline Loan ” has the meaning assigned to such term in Section 2.04.

Taxes ” means any present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Total LC Exposure ” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time, plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time.

Total Revolving Credit Exposure ” means at any time, the sum of (a) the aggregate outstanding principal amount of all Revolving Loans at such time plus (b) the Total LC Exposure at such time plus (c) the aggregate outstanding principal amount of all Swingline Loans at such time.

Transactions ” means the Separation, the Special Distribution, the Facility and the Borrower’s issuance of the Senior Notes.

Type ”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

U.S. Person ” means a “ United States person ” within the meaning of Section 7701(a)(30) of the Code.

U.S. Tax Certificate ” has the meaning assigned to such term in Section 2.16(f)(ii)(D)(2).

Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

Withholding Agent ” means any Loan Party and the Administrative Agent.

SECTION 1.02. Classification of Loans and Borrowings . For purposes of this Agreement, Loans may be classified and referred to by Class ( e.g. , a “Revolving Loan”) or by Type ( e.g. , a “Eurodollar Loan”) or by Class and Type ( e.g. , a “Eurodollar Revolving Loan”). Borrowings also may be classified and referred to by Class ( e.g. , a “Revolving Borrowing”) or by Type ( e.g. , a “Eurodollar Borrowing”) or by Class and Type ( e.g. , a “Eurodollar Revolving Borrowing”).

SECTION 1.03. Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended,

 

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supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including intellectual property, cash, securities, accounts and contract rights, (f) with respect to the determination of any period of time, the word “from” means “from and including” and the word “to” means “to but excluding” and (g) reference to any law, rule or regulation means such as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time.

SECTION 1.04. Accounting Terms; GAAP . (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided , that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, for purposes of calculations made pursuant to the terms of this Agreement or any other Loan Document, GAAP will be deemed to treat leases that would have been classified as operating leases in accordance with generally accepted accounting principles in the United States of America as in effect on December 31, 2010 in a manner consistent with the treatment of such leases under generally accepted accounting principles in the United States of America as in effect on December 31, 2010, notwithstanding any modifications or interpretive changes thereto that may occur thereafter.

(b) For purposes of making all financial calculations to determine compliance with the financial covenants in Sections 6.07 and 6.08, all components of such calculations shall be adjusted to include or exclude, as the case may be, without duplication, such components of such calculations attributable to any business or assets for an aggregate consideration which is equal to at least $100,000,000 that have been acquired or disposed of by the Borrower or any of its Subsidiaries after the first day of the applicable period of determination and prior to the end of such period, as determined in good faith by the Borrower on a Pro Forma Basis.

ARTICLE II

The Credits

SECTION 2.01. Commitments . Subject to the terms and conditions set forth herein, each Lender agrees to make loans to the Borrower (each such loan, a “ Revolving Loan ”) from time to time during the Availability Period in an aggregate principal amount that will not result in (a) such Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment or (b) the Total Revolving Credit Exposure exceeding the Aggregate Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.

 

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SECTION 2.02. Loans and Borrowings . (a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their respective Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided , that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

(b) Subject to Section 2.13, each Revolving Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided , that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

(c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000; provided , that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Aggregate Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Each Swingline Loan shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000, provided , that a Swingline Loan may be in an amount that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Borrowings of more than one Type and Class may be outstanding at the same time; provided , that there shall not at any time be more than a total of 15 Eurodollar Revolving Borrowings outstanding.

(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.

SECTION 2.03. Requests for Revolving Borrowings . To request a Revolving Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone, telecopy or electronic mail (a) in the case of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Revolving Borrowing, not later than 1:00 p.m., New York City time, on the date of the proposed Borrowing. Each such Borrowing Request shall be irrevocable and, in the case of a telephonic Borrowing Request, shall be confirmed promptly by hand delivery, telecopy or electronic mail (in .pdf form) to the Administrative Agent of a written Borrowing Request signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:

(i) the aggregate principal amount of the requested Borrowing;

(ii) the date of such Borrowing, which shall be a Business Day;

(iii) whether such Borrowing is to be an ABR Revolving Borrowing or a Eurodollar Borrowing;

(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and

 

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(v) the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.06.

If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving Borrowing shall be an ABR Revolving Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Revolving Loan to be made as part of the requested Borrowing.

SECTION 2.04. Swingline Loans . (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make loans to the Borrower (each such loan, a “ Swingline Loan ”) from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $100,000,000 or (ii) the Total Revolving Credit Exposure exceeding the Aggregate Commitments; provided , that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.

(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone, telecopy or electronic mail (and, in the case of telephonic notice, promptly confirmed by hand delivery, telecopy or electronic mail), not later than 2:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.

(c) The Swingline Lender may, by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day, require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis , to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other

 

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party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided , that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.

SECTION 2.05. Letters of Credit . (a)  General . Subject to the terms and conditions set forth herein, the Borrower may request that any Issuing Bank issue Letters of Credit for the Borrower’s account, in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time and from time to time during the Availability Period, in support of obligations of the Borrower or any of its Subsidiaries. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.

(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions . To request the issuance of a Letter of Credit by any Issuing Bank (or the amendment, renewal or extension of an outstanding Letter of Credit issued by any Issuing Bank), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by such Issuing Bank) to such Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended by the applicable Issuing Bank only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the Total LC Exposure shall not exceed $1,500,000,000, (ii) the Total Revolving Credit Exposure shall not exceed the Aggregate Commitments, and (iii) the portion of the Total LC Exposure attributable to Letters of Credit issued by such Issuing Bank will not, unless such Issuing Bank shall so agree in writing, exceed $250,000,000.

(c) Expiration Date . Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) unless a later date is otherwise agreed to in writing by the applicable Issuing Bank and the Administrative Agent, the date that is one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the Maturity Date; provided , that any Letter of Credit may provide for the automatic renewal thereof for additional periods which shall not extend beyond the Maturity Date.

(d) Participations . By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally

 

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agrees to pay to the Administrative Agent, for the account of such Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

(e) Reimbursement . If any Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 5:00 p.m., New York City time, on the date that such LC Disbursement is made, if the Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been received by the Borrower prior to such time on such date, then not later than 5:00 p.m., New York City time, on (i) the Business Day that the Borrower receives such notice, if such notice is received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time on the day of receipt; provided that the Borrower may, at its election and subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or Section 2.04, as applicable, that such payment be financed with an ABR Revolving Borrowing (if such LC Disbursement is not less than $1,000,000) or a Swingline Loan in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis , to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse any Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.

(f) Obligations Absolute . The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by each Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the

 

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Lenders nor any Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of any Issuing Bank; provided , that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the applicable Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, each Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

(g) Disbursement Procedures . The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit issued by such Issuing Bank. Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone, telecopy or electronic mail (and, in the case of telephonic notice, promptly confirmed by hand delivery, telecopy or electronic mail) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided , that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the Lenders with respect to any such LC Disbursement.

(h) Interim Interest . If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided, that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.12(c) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment.

(i) Termination of an Issuing Bank . Any Issuing Bank may be terminated at any time upon not less than 10 Business Days’ written notice by the Borrower to the Administrative Agent and such Issuing Bank. The Administrative Agent shall notify the Lenders of any such termination of an Issuing Bank. After the termination of an Issuing Bank hereunder, such Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such termination, but shall not be required to issue additional Letters of Credit.

(j) Cash Collateralization . If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Required

 

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Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposures representing greater than 50% of the Total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account maintained with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing Banks and Lenders, an amount in cash equal to the Total LC Exposure as of such date plus any accrued and unpaid interest thereon; provided , that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of Article VII. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits (in the event any such investment is made pursuant to the following sentence), such deposits shall not bear interest. The Administrative Agent shall not be required to invest any such deposits; provided that if the Administrative Agent elects to invest any such deposits, the Administrative Agent shall invest such deposits in one or more types of Cash Equivalents, and such investments shall be at the Borrower’s risk and expense. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the Total LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposures representing greater than 50% of the Total LC Exposure), be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived.

SECTION 2.06. Funding of Borrowings . (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 2:00 p.m., New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided , that Swingline Loans shall be made as provided in Section 2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower designated by the Borrower in the applicable Borrowing Request; provided , that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.

(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Eurodollar Borrowing (or, in the case of any Borrowing of ABR Loans, prior to 3:00 p.m., New York City time, on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to the Loans comprising such Borrowing. If the Borrower and such Lender shall both pay

 

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such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

SECTION 2.07. Interest Elections . (a) Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may, at any time and from time to time, elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, which may not be converted or continued.

(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone, telecopy or electronic mail by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery, telecopy or electronic mail to the Administrative Agent of a written Interest Election Request signed by the Borrower.

(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:

(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii) whether the resulting Borrowing is to be an ABR Revolving Borrowing or a Eurodollar Borrowing; and

(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

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(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Revolving Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing, (i) no outstanding Revolving Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR Revolving Borrowing at the end of the Interest Period applicable thereto.

SECTION 2.08. Termination and Reduction of Commitments . (a) Unless previously terminated pursuant to the terms of this Agreement, the Commitments shall terminate on the Maturity Date (as may be extended with respect to some or all of the Commitments pursuant to Section 2.20); provided , however , that the Commitments shall terminate on December 31, 2011 at 5:00 p.m. New York City time if the Effective Date shall not have occurred on or before such time.

(b) The Borrower may at any time terminate, or from time to time reduce, the Commitments; provided , that (i) each reduction of the Commitments shall be in an amount that is an integral multiple of $10,000,000 and not less than $50,000,000 and (ii) the Borrower shall not terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.10, the Total Revolving Credit Exposure would exceed the Aggregate Commitments as a result thereof.

(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided , that a notice of termination of the Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or the closing of one or more securities offerings, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of the Commitments shall be made ratably among the Lenders in accordance with their respective Commitments.

SECTION 2.09. Repayment of Loans; Evidence of Debt . (a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan of such Lender on the Maturity Date and (ii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Maturity Date and the first date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is made; provided , that on each date that a Borrowing of Revolving Loans is made, the Borrower shall repay all Swingline Loans then outstanding.

(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from

 

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the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided , that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.

(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and substantially in the form of Exhibit D. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

SECTION 2.10. Prepayment of Loans . (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with paragraph (b) of this Section.

(b) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone, telecopy or electronic mail (and, in the case of telephonic notice, promptly confirmed by hand delivery, telecopy or electronic mail) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing, not later than 1:00 p.m., New York City time, one Business Day before the date of prepayment, (ii) in the case of prepayment of an ABR Revolving Borrowing, not later than 1:00 p.m., New York City time, on the same Business Day as the date of prepayment, or (iii) in the case of prepayment of a Swingline Loan, not later than 2:00 p.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated by Section 2.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.08. Promptly following receipt of any such notice relating to a Revolving Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.

(c) If, on any date, the Administrative Agent notifies the Borrower that Total Revolving Credit Exposure exceeds the Aggregate Commitments on such date, the Borrower shall, as soon as practicable and in any event within two Business Days after receipt of such notice, prepay the outstanding principal amount of any Loans owing by the Borrower in an aggregate amount sufficient to reduce such sum to an amount not to exceed 100% of the Aggregate Commitments on such date. If any such excess remains after prepayment in full of the aggregate outstanding Loans, the Borrower shall provide cash collateral in the manner set forth in Section 2.05(j) in an amount equal to 100% of such excess.

SECTION 2.11. Fees . (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a commitment fee, which shall accrue at the Applicable Rate on the daily

 

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amount (if any) by which the Commitment of such Lender exceeds the Revolving Credit Exposure of such Lender during the period from and including the date of this Agreement to but excluding the date on which such Commitment terminates. Accrued commitment fees shall be payable in arrears on the last day of March, June, September and December of each year and on the date on which the Commitments terminate, commencing on the first such date to occur after the date hereof; provided , that (i) all commitment fees accruing from and including the date of this Agreement to but excluding the Effective Date shall be payable on the Effective Date and (ii) any commitment fees accruing after the date on which the Commitments terminate shall be payable on demand. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such Lender’s Commitment terminates and the date on which such Lender ceases to have any LC Exposure, (ii) to each Issuing Bank, for its own account, a fronting fee with respect to each Letter of Credit issued by it in the amount agreed between such Issuing Bank and the Borrower prior to the issuance of such Letter of Credit, and (iii) to each Issuing Bank, for its own account, such Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through and including the last day of March, June, September and December of each year shall be payable in arrears on such last day, commencing on the first such date to occur after the Effective Date; provided , that all such fees shall be payable on the date on which the Commitments terminate and any such fees accruing after the date on which the Commitments terminate shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to this paragraph shall be payable within 30 days after demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The amount of participation and fronting fees payable hereunder shall be set forth in a written invoice or other notice delivered to the Borrower by the Administrative Agent or, in the case of fronting fees, by the applicable Issuing Bank.

(c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent.

(d) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to the applicable Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Lenders. Fees paid shall not be refundable under any circumstances.

SECTION 2.12. Interest . (a) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.

(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.

(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment,

 

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at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.000% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2.000% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.

(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and upon termination of the Commitments; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Revolving Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent in accordance with the terms hereof, and such determination shall be conclusive absent manifest error.

SECTION 2.13. Alternate Rate of Interest . If prior to the commencement of any Interest Period for a Eurodollar Borrowing:

(a) the Administrative Agent reasonably determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or

(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;

then the Administrative Agent shall give written notice thereof to the Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any ABR Revolving Borrowing to, or continuation of any Eurodollar Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Revolving Borrowing.

SECTION 2.14. Increased Costs . (a) If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank;

(ii) impose on any Lender or any Issuing Bank or the London interbank market any other condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation therein; or

 

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(iii) subject any Recipient to any Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto (other than (A) Indemnified Taxes, (B) Other Connection Taxes on gross or net income, profits or revenue (including value-added or similar Taxes) and (C) Excluded Taxes described in paragraphs (a), (b), (d) and (e) of the definition of Excluded Taxes);

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, such Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise), then subject to paragraphs (c) and (d) of this Section, the Borrower will pay to such Recipient such additional amount or amounts as will compensate such Recipient for such additional costs incurred or reduction suffered.

(b) If any Lender or any Issuing Bank determines in good faith that any Change in Law regarding capital requirements has the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy), then from time to time, subject to paragraphs (c) and (d) of this Section, the Borrower will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered; provided , that such Lender or such Issuing Bank is generally seeking, or intends generally to seek, compensation from similarly situated borrowers under similar credit facilities (to the extent such Lender or Issuing Bank has the right under such similar credit facilities to do so) with respect to such Change in Law regarding capital requirements.

(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section, including in reasonable detail a description of the basis for such claim for compensation and a calculation of such amount or amounts, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within 30 days after receipt thereof.

(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided , that the Borrower shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrower in writing of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor; provided , further , that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

SECTION 2.15. Break Funding Payments . In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto

 

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(including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure (other than as a result of the failure of a Lender to fund a Loan required to be funded hereunder) to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.10(b) and is revoked in accordance therewith), (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.18 or Section 2.20(c), or (e) the operation of Section 2.21 on any Incremental Commitment Effective Date, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event in accordance with the terms of this Section. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section, including in reasonable detail a description of the basis for such compensation and a calculation of such amount or amounts, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof.

SECTION 2.16. Taxes . (a) Withholding of Taxes; Gross-Up. Each payment by any Loan Party under any Loan Document shall be made without withholding for any Taxes, unless such withholding is required by any law. If any Withholding Agent determines, in its sole discretion exercised in good faith, that it is so required to withhold Taxes, then such Withholding Agent may so withhold and shall timely pay the full amount of withheld Taxes to the relevant Governmental Authority in accordance with applicable law. If such Taxes are Indemnified Taxes, then the amount payable by such Loan Party shall be increased as necessary so that, net of such withholding (including such withholding applicable to additional amounts payable under this Section), the applicable Recipient receives the amount it would have received had no such withholding been made.

(b) Payment of Other Taxes by the Borrower . The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(c) Evidence of Payments . As soon as practicable after any payment of Indemnified Taxes by any Loan Party to a Governmental Authority, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(d) Indemnification by the Borrower . The Loan Parties shall jointly and severally indemnify each Recipient for any Indemnified Taxes that are paid or payable (without duplication) by such Recipient in connection with any Loan Document (including amounts paid or payable under this Section 2.16(d)) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this Section 2.16(d) shall be paid within 20 days after the Recipient delivers to any Loan Party a certificate stating the amount of any Indemnified Taxes so paid or payable by

 

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such Recipient and describing the basis for the indemnification claim. Such Recipient shall deliver a copy of such certificate to the Administrative Agent.

(e) Indemnification by the Lenders . Each Lender shall severally indemnify the Administrative Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so) attributable to such Lender that are paid or payable by the Administrative Agent in connection with any Loan Document and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this Section 2.16(e) shall be paid within 10 days after the Administrative Agent delivers to the applicable Lender a certificate stating the amount of Taxes so paid or payable by the Administrative Agent. Such certificate shall be conclusive of the amount so paid or payable absent manifest error.

(f) Status of Lenders . (i) Any Lender that is entitled to an exemption from, or reduction of, any applicable withholding Tax with respect to any payments under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without, or at a reduced rate of, withholding. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to any withholding (including backup withholding) or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.16(f)(ii)(A) through (E) below) shall not be required if in the Lender’s judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Upon the reasonable request of such Borrower or the Administrative Agent, any Lender shall update any form or certification previously delivered pursuant to this Section 2.16(f). If any form or certification previously delivered pursuant to this Section expires or becomes obsolete or inaccurate in any respect with respect to a Lender, such Lender shall promptly (and in any event within 10 days after such expiration, obsolescence or inaccuracy) notify such Borrower and the Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so.

(ii) Without limiting the generality of the foregoing, if the Borrower is a U.S. Person, any Lender with respect to such Borrower shall, if it is legally eligible to do so, deliver to such Borrower and the Administrative Agent (in such number of copies reasonably requested by such Borrower and the Administrative Agent) on or prior to the date on which such Lender becomes a party hereto, duly completed and executed copies of whichever of the following is applicable:

(A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;

(B) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (1) with respect to payments of interest under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “ interest ” article of such tax treaty and (2) with respect to any other applicable payments under this Agreement, IRS Form W-8BEN establishing an exemption from, or

 

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reduction of, U.S. Federal withholding Tax pursuant to the “ business profits ” or “ other income ” article of such tax treaty;

(C) in the case of a Non-U.S. Lender for whom payments under this Agreement constitute income that is effectively connected with such Lender’s conduct of a trade or business in the United States, IRS Form W-8ECI;

(D) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN and (2) a certificate substantially in the form of Exhibit E (a “ U.S. Tax Certificate ”) to the effect that such Lender is not (a) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code (c) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (d) conducting a trade or business in the United States with which the relevant interest payments are effectively connected;

(E) in the case of a Non-U.S. Lender that is not the beneficial owner of payments made under this Agreement (including a partnership or a participating Lender) (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph (f)(ii) that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender; provided, however, that if the Lender is a partnership and one or more of its partners are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Lender may provide a U.S. Tax Certificate on behalf of such partners; or

(F) any other form prescribed by law as a basis for claiming exemption from, or a reduction of, U.S. Federal withholding Tax together with such supplementary documentation necessary to enable the Borrower or the Administrative Agent to determine the amount of Tax (if any) required by law to be withheld.

(iii) If a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Withholding Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Withholding Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Withholding Agent as may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that such Lender has or has not complied with such Lender’s obligations under FATCA and, as necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.16(f)(iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(g) Treatment of Certain Refunds . If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.16 (including additional amounts paid pursuant to this Section 2.16), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid to such indemnifying party pursuant to the previous sentence (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such indemnified party is required to repay such refund to such Governmental Authority. This Section 2.16(g) shall not be construed to require any

 

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indemnified party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the indemnifying party or any other Person.

(h) Issuing Bank . For purposes of Section 2.16(e) and (f), the term “Lender” includes any Issuing Bank.

SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs . (a) Except as provided in Section 2.05(e), the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest or fees, or of amounts payable under Section 2.14, 2.15 or 2.16, or otherwise) prior to 12:00 noon, New York City time, on the date when due, in immediately available funds, without set off or counterclaim. The Borrower shall make each reimbursement of LC Disbursements required to be made by it prior to the time for such payments set forth in Section 2.05(e). Any amounts received after the time set forth above or in Section 2.05(e), as applicable, on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 270 Park Avenue, New York, New York, except payments to be made directly to an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars.

(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.

(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and participations in LC Disbursements and Swingline Loans; provided , that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing

 

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arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or an Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

(e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 9.03(c), then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the applicable Issuing Bank to satisfy such Lender’s obligations to such Person under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.

SECTION 2.18. Mitigation Obligations; Replacement of Lenders . (a) If any Lender requests compensation under Section 2.14, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b) If (i) any Lender requests compensation under Section 2.14, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, (ii) any Lender becomes a Defaulting Lender or (iii) any Lender refuses to consent to any proposed amendment, modification, waiver or consent with respect to any provision hereof that requires the unanimous approval of all Lenders, or the approval of each of the Lenders affected thereby (in each case in accordance with Section 9.02), and the consent of the Required Lenders shall have been obtained with respect to such amendment, modification, waiver or consent, then the Borrower may, at its sole expense and effort (including payment of any applicable processing and recordation fees), upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided , that (x) the Borrower shall have received the prior written consent of the Administrative Agent with respect to any assignee that is not already a Lender hereunder (and if a Commitment is being assigned, each Issuing

 

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Bank), which consent shall not unreasonably be withheld, conditioned or delayed, (y) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (z) in the case of any such assignment resulting from a claim for compensation under Section 2.14 or payments required to be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

SECTION 2.19. Defaulting Lenders . Notwithstanding any provision of any Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the provisions set forth in the following paragraphs (a) through (e) shall apply for so long as such Lender is a Defaulting Lender:

(a) commitment fees shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.11(a);

(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders (or each Lender) or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided , that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification providing for an increase in such Defaulting Lender’s Commitment, providing for an extension of such Defaulting Lender’s Commitment (other than in determining whether the Required Lenders have consented to the extension of the Maturity Date under Section 2.20) or requiring the consent of each Lender affected thereby (including pursuant to Sections 9.02(b)(ii) and (iii)) if such Defaulting Lender is an affected Lender;

(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender, then:

(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the non-Defaulting Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the non-Defaulting Lenders’ respective Applicable Percentages), but only to the extent that (A) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments, (B) after giving effect to any such reallocation, no non-Defaulting Lender’s Revolving Credit Exposure shall exceed such non-Defaulting Lender’s Commitment and (C) no Event of Default has occurred and is continuing at such time;

(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, within three Business Days following the Borrower’s receipt of written notice from the Administrative Agent, (A) first, prepay such Swingline Exposure and (B) second, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(j) for so long as such LC Exposure is outstanding;

 

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(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;

(iv) if all or any portion of such Defaulting Lender’s LC Exposure is reallocated pursuant to clause (i) above, then all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Lender under Section 2.11(b) with respect to such Defaulting Lender’s reallocated LC Exposure shall be payable to the non-Defaulting Lenders in accordance with such non-Defaulting Lenders’ Applicable Percentages after giving effect to such reallocation; and

(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Lender under Section 2.11(b) with respect to such Defaulting Lender’s unreallocated LC Exposure shall be payable to the Issuing Banks, ratably based on the portion of such LC Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such LC Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;

(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.19(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein);

(e) in the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposures and LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage; and

(f) the rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.19 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, Issuing Bank, Swingline Lender, Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender.

SECTION 2.20. Extension of Maturity Date . (a) At least 30 days prior to, but not more than 90 days prior to, any anniversary of the Effective Date, the Borrower, by written notice to the Administrative Agent, may request an extension of the Maturity Date to the date that is one year after the then existing Maturity Date (such existing Maturity Date, the “ Existing Maturity Date ”). The Administrative Agent shall promptly notify each Lender of such request, and each Lender shall, in turn, in its sole discretion, not later than 20 days after delivery of such notice by the Administrative Agent to the Lenders, notify the Administrative Agent in writing as to whether such Lender consents to such extension. If any Lender shall fail to notify the Administrative Agent in writing of its consent to any such request for extension of the Maturity Date not later than 20 days after the delivery of such notice by

 

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the Administrative Agent to the Lenders, such Lender shall be deemed to have not consented to such extension. The Administrative Agent shall promptly notify the Borrower of the consents received with respect to the Borrower’s request for an extension of the Maturity Date. The Maturity Date may be extended pursuant to this Section 2.20 on no more than two (2) separate instances during the term of this Agreement.

(b) If the Required Lenders consent in writing to any such request in accordance with Section 2.20(a), the Maturity Date shall be extended to the date which is one year after the Existing Maturity Date as to those Lenders that so consented (each, an “ Extending Lender ”) but shall not be extended as to any Non-Extending Lender. To the extent that the Maturity Date is not extended as to any Non-Extending Lender pursuant to this Section 2.20 and the Commitment of such Non-Extending Lender is not assigned in accordance with Section 2.20(c) on or prior to the applicable Existing Maturity Date, the Commitment of such Non-Extending Lender shall automatically terminate in whole on such Existing Maturity Date without any further notice or other action by the Borrower, such Lender or any other Person; provided , that such Non-Extending Lender’s rights under Sections 2.14, 2.15, 2.16 and 9.03, and its obligations under Section 9.03, shall survive such Existing Maturity Date for such Lender as to matters occurring prior to such date. It is understood and agreed that no Lender shall have any obligation whatsoever to agree to any request made by the Borrower for any requested extension of the Maturity Date.

(c) If, pursuant to Section 2.20(a), the Borrower requests an extension of the Maturity Date and the Required Lenders consent to such request, then the Borrower may, at any time after the day that is 27 months prior to the Maturity Date in effect at such time, at its sole expense and effort (including payment of any applicable processing and recordation fees), require any Non-Extending Lender, promptly following notice to such Non-Extending Lender and the Administrative Agent, to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to a willing assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided , that (i) unless the assignee is already a Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, conditioned or delayed, and (ii) such Non-Extending Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts).

(d) If the Required Lenders consent in writing to a requested extension of the Maturity Date, not later than one Business Day prior to the applicable Existing Maturity Date, the Administrative Agent shall so notify the Borrower, and the Existing Maturity Date then in effect shall be extended for the additional one-year period as described in Section 2.20(b), and all references in the Loan Documents to the “Maturity Date” shall, solely with respect to the Commitments and Revolving Credit Exposure of each Extending Lender and each assignee pursuant to Section 2.20(c) for such extension, refer to the Maturity Date as so extended. Promptly following the applicable Existing Maturity Date, the Administrative Agent shall notify the Lenders (including each assignee pursuant to Section 2.20(c)) of such extension of the applicable Existing Maturity Date and shall thereupon record in the Register the relevant information with respect to each such Extending Lender and each such assignee.

SECTION 2.21. Commitment Increases . (a) Subject to Section 4.03, the Borrower and any one or more Lenders (including New Lenders (as defined below)) may, from time to time, without the consent of any other Lender, the Administrative Agent or any Issuing Bank (but with the consent of the Administrative Agent and each Issuing Bank (not to be unreasonably withheld, delayed or

 

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conditioned) with respect to any New Lender), agree that such Lenders shall provide additional Commitments or increase the amount of their Commitments (each, a “ Commitment Increase ”) by executing and delivering to the Administrative Agent an Incremental Commitment Activation Notice specifying (A) the amount of such Commitment Increase and (B) the proposed applicable Incremental Commitment Effective Date. Notwithstanding the foregoing, (X) the aggregate amount of Commitment Increases obtained after the Effective Date shall not exceed $500,000,000 and (Y) each Commitment Increase shall be in an integral multiple of $5,000,000 and not less than $25,000,000. No Lender shall have any obligation to participate in any Commitment Increase unless it agrees to do so in its sole discretion. Any entity that is eligible to be an assignee under Section 9.04 (and has provided to the Administrative Agent an Administrative Questionnaire and any applicable tax forms required under Section 2.16(f) with respect to such entity) that elects to become a “Lender” under this Agreement in connection with any Commitment Increase shall execute a New Lender Supplement (each, a “ New Lender Supplement ”), substantially in the form of Exhibit F-2, whereupon such bank, financial institution or other entity (a “ New Lender ”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.

(b) (i) The commitments under each Commitment Increase shall be deemed for all purposes part of the Commitments, (ii) each Lender (including any New Lender) participating in such Commitment Increase shall become a Lender with respect to the Commitments and all matters relating thereto and (iii) the commitments under each Commitment Increase shall have the same terms as the Commitments. On the Incremental Commitment Effective Date for any Commitment Increase, each Lender participating in such Commitment Increase shall purchase and assume from each existing Lender having Loans outstanding on such Incremental Commitment Effective Date, without recourse or warranty, an undivided interest and participation, to the extent of such Lender’s ratable portion of the Aggregate Commitments (after giving effect to such Commitment Increase), in the aggregate Loans then outstanding, so as to ensure that, on the Incremental Commitment Effective Date after giving effect to such Commitment Increase, each Lender is owed only its ratable portion of the Loans on such Incremental Commitment Effective Date. Each existing Lender (X) shall be automatically deemed to have assigned any outstanding Loans on the Incremental Commitment Effective Date for any Commitment Increase and (Y) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentence.

ARTICLE III

Representations and Warranties

The Borrower represents and warrants to the Lenders, as of the Effective Date and thereafter as of each date required by Sections 4.02 or 4.03, that:

SECTION 3.01. Organization; Powers . Each of the Borrower and its Significant Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to carry on its business as now conducted and (c) except where the failure to be so qualified or in good standing, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.

SECTION 3.02. Authorization; Enforceability . The execution, delivery and performance by the Borrower of this Agreement are within the Borrower’s corporate powers and have been duly authorized by all necessary corporate action. This Agreement has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower,

 

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enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

SECTION 3.03. Governmental Approvals; No Conflicts . The execution, delivery and performance by the Borrower of this Agreement (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect (except for any reports required to be filed by the Borrower with the SEC pursuant to the Exchange Act; provided that the failure to make any such filings shall not affect the validity or enforceability of this Agreement or the rights and remedies of the Administrative Agent and the Lenders hereunder), (b) will not violate in any material respect any law or regulation or any order of any Governmental Authority, in each case, applicable to or binding upon the Borrower or any of its property, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or any of its Subsidiaries or by which any property or asset of the Borrower or any of its Subsidiaries is bound, except to the extent that a Material Adverse Effect would not reasonably be expected to result therefrom, (d) will not result in the creation or imposition of any Lien prohibited hereunder on any asset of the Borrower or any of its Subsidiaries and (e) will not violate the charter, by-laws or other organizational documents of the Borrower or any of its Subsidiaries.

SECTION 3.04. Financial Condition; No Material Adverse Change . (a) The Borrower has heretofore furnished to the Lenders its consolidated or combined balance sheet and consolidated or combined statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2010, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year most recently ended prior to the Effective Date for which quarterly financial statements of the Borrower are available, certified by its chief financial officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and for such periods on a consolidated basis in accordance with GAAP, subject to year end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above.

(b) As of the Effective Date, there has been no Material Adverse Change since September 30, 2010.

SECTION 3.05. Properties . (a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to the business of the Borrower and its Subsidiaries, taken as a whole, except for Liens permitted hereby and except where the failure to have such title or leasehold interest would not reasonably be expected to result in a Material Adverse Effect.

(b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to the business of the Borrower and its Subsidiaries, taken as a whole, except where the failure to own, or be licensed to use, such intellectual property would not reasonably be expected to have a Material Adverse Effect, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

SECTION 3.06. Litigation and Environmental Matters . (a) As of the Effective Date, there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any of its

 

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Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or the Transactions.

(b) Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, or (iii) knows of any basis for any Environmental Liability.

SECTION 3.07. Compliance with Laws; No Default . Each of the Borrower and its Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is continuing or will result from the execution and delivery of this Agreement or any of the other Loan Documents, or the making of the Loans hereunder.

SECTION 3.08. Margin Regulations; Investment Company Status . The Borrower is not engaged in the business of extending credit for the purpose of “purchasing” or “carrying” “margin stock” within the respective meanings of each of the quoted terms under Regulation U of the Board. No proceeds of any Loan hereunder will be used by the Borrower or its Subsidiaries for “purchasing” or “carrying” “margin stock” as so defined in contravention of the provisions of Regulations T, U, or X of the Board. Neither the Borrower nor any of its Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.

SECTION 3.09. Taxes . Each of the Borrower and its Subsidiaries has filed or caused to be filed all Tax returns and reports required to have been filed by it and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes or the filing of Tax returns or reports that are being contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so would not reasonably be expected to result in a Material Adverse Effect.

SECTION 3.10. ERISA . No ERISA Event has occurred or is reasonably expected to occur that would reasonably be expected to result in a Material Adverse Effect.

SECTION 3.11. Disclosure . Neither the Information Memorandum nor any of the other written reports, financial statements, certificates or other written information (collectively, the “ Information ”) furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other Information so furnished) contained, as of the date such Information was furnished (or, if such Information expressly related to a specific date, as of such specific date) any material misstatement of fact or omitted to state, as of the date such Information was furnished (or, if such Information expressly related to a specific date, as of such specific date), any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by it to be reasonable at the time.

SECTION 3.12. Subsidiaries . Set forth in Schedule 3.12 (as such Schedule may be updated on or prior to the Effective Date in accordance with Section 4.01(n)) is a complete and accurate

 

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list showing, as of the Effective Date, all Subsidiaries of the Borrower and, as to each such Subsidiary, the jurisdiction of its organization. Other than as set forth in such Schedule 3.12, no capital stock of any Guarantor is subject to any outstanding option, warrant, right of conversion or purchase of any similar right. All of the outstanding capital stock of each Guarantor owned (directly or indirectly) by the Borrower has been validly issued, is fully paid and non-assessable (to the extent applicable) and is owned (directly or indirectly), free and clear of all Liens (other than Liens permitted pursuant to Section 6.02).

SECTION 3.13. Separation Transactions . As of the Effective Date:

(a) the Separation and the Special Distribution are within the Borrower’s and (as applicable) MRO’s corporate powers and have been duly authorized by all necessary corporate action. Each of the Separation Documents has been duly executed and delivered by each party thereto and constitutes a legal, valid and binding obligation of such party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law; and

(b) the Separation and the Special Distribution (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect (except for any reports required to be filed by the Borrower or MRO with the SEC pursuant to the Exchange Act), (ii) will not violate in any material respect any law or regulation or any order of any Governmental Authority, in each case, applicable to or binding upon the Borrower or MRO or any of the Borrower’s or MRO’s property, (iii) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or any of its Subsidiaries or by which any property or asset of the Borrower or any of its Subsidiaries is bound, except to the extent that a Material Adverse Effect would not reasonably be expected to result therefrom, (iv) will not result in the creation or imposition of any Lien prohibited hereunder on any asset of the Borrower or any of its Subsidiaries and (v) will not violate the charter, by-laws or other organizational documents of the Borrower or MRO.

ARTICLE IV

Conditions

SECTION 4.01. Effective Date . The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date, on or before December 31, 2011, on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):

(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page to this Agreement) that such party has signed a counterpart of this Agreement.

(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of Baker Botts L.L.P., counsel for the Borrower, reasonably satisfactory to the Administrative Agent, and covering such matters relating to the Borrower, this Agreement or the Transactions as the Required Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.

 

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(c) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of the Borrower, dated as of the Effective Date, certifying (i) the resolutions of the board of directors of the Borrower authorizing the execution of each Loan Document to which the Borrower is a party, (ii) the charter, bylaws or other applicable organizational documents of the Borrower and (iii) the names and true signatures of the officers executing any Loan Document on behalf of the Borrower on the Effective Date.

(d) The Administrative Agent shall have received a certificate of good standing with respect to the Borrower from appropriate public officials in the jurisdiction of organization of the Borrower.

(e) The Administrative Agent shall have received (i) a certificate, dated the Effective Date and signed by the Chief Financial Officer of the Borrower, as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries as of the Effective Date on a pro forma basis after giving effect to the Transactions and (ii) a certificate, dated the Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming the Borrower’s compliance with the conditions set forth in paragraphs (g), (h), (i), (k) and (l) of this Section 4.01 and paragraphs (a) and (b) of Section 4.02, each in form and substance reasonably satisfactory to the Administrative Agent.

(f) On or before the Effective Date, the Lenders, the Administrative Agent and the Arrangers shall have received all fees required to be paid, and all reasonable out-of-pocket expenses required to be paid for which reasonably detailed invoices have been presented to the Borrower on or before the date that is one Business Day prior to the Effective Date, and the Borrower shall have complied in all material respects with its other obligations set forth in the commitment letter dated January 12, 2011 among the Arrangers and the Borrower and the fee letter dated January 12, 2011 among the Arrangers, the Administrative Agent and the Borrower, in each case, entered into in connection herewith.

(g) The final terms and conditions of each aspect of the Separation (including, without limitation, all tax aspects thereof and the management arrangements with respect to the Borrower and its Subsidiaries) shall be consistent in all material respects with the description thereof received in writing by the Administrative Agent and the Arrangers prior to the date hereof, other than with respect to changes that are not materially adverse to the Lenders or are otherwise approved in writing by the Arrangers. The Arrangers shall be reasonably satisfied with (i) any amendments to the Registration Statement filed with the SEC, (ii) all material agreements and material documentation (including schedules and exhibits thereto) relating to the Stock Distribution (the “ Stock Distribution Documents ”) and (iii) all material agreements and material documentation (including all schedules and exhibits thereto) relating to the Contribution (the “ Contribution Documents ”, and together with the Distribution Documents, collectively, the “ Separation Documents ”). The Contribution and the Stock Distribution shall have been consummated in compliance with applicable law and regulatory approvals and in accordance with the terms of the Separation Documents, and none of the Separation Documents shall have been altered, amended or otherwise modified or supplemented and no condition therein shall have been waived and no consent shall have been given thereunder, in each case, in a manner materially adverse to the Lenders without the prior written consent of the Arrangers. The Borrower shall have received not less than $2,500,000,000 of aggregate gross proceeds (before deduction for discounts, commissions and transaction costs and expenses) from its issuance of the Senior Notes and the Special Distribution shall have been consummated.

(h) As of the Effective Date, upon giving effect to the Transactions, the Borrower and its Subsidiaries shall have no Indebtedness or other material liabilities other than (i) Indebtedness arising under this Agreement and the other Loan Documents, (ii) other Indebtedness and liabilities

 

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pursuant to the Transactions and the Separation Documents or (iii) as otherwise permitted under the Loan Documents.

(i) All governmental and third-party consents or approvals necessary in connection with the Transactions and the continuing operations of the Borrower and its Subsidiaries shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any Governmental Authority having appropriate jurisdiction which would restrain or prevent or otherwise impose materially adverse conditions on the Transactions or the financing thereof, including without limitation: (i) final approval by the board of directors of MRO, (ii) receipt by MRO (with a copy to the Arrangers) of a private letter ruling from the IRS substantially to the effect that each Contribution and Stock Distribution will qualify as a transaction that is tax-free to the Borrower, MRO and its stockholders for U.S. federal income tax purposes under Sections 355 and 368(a)(1)(D) of the Code, subject to such assumptions, qualifications and limitations as are customarily contained in such rulings, (iii) receipt by MRO (with a copy to the Arrangers) of a satisfactory opinion from special tax counsel to MRO substantially to the effect that each Contribution and Stock Distribution will qualify as a transaction that is tax-free to the Borrower, MRO and its stockholders for U.S. federal income tax purposes under Sections 355 and 368(a)(1)(D) of the Code, subject to such assumptions, qualifications and limitations as are customarily contained in such opinions, (iv) the SEC declaring the Registration Statement (as such Registration Statement may have been amended) effective, (v) consents to assignments or other satisfactory evidence of continuity, without material disruption or the incurring of costs materially in excess of those described in the Registration Statement, of material existing operations and contractual arrangements and commitments of the assets transferred to the Borrower pursuant to the Contribution, and (vi) releases of Liens on the assets transferred to the Borrower pursuant to the Contribution attributable to MRO or its lien creditors other than Liens permitted hereunder.

(j) The Lenders shall have received (i) at least 30 days prior to the Effective Date, fully audited “carve-out” consolidated or combined financial statements of the Borrower and its consolidated Subsidiaries and the Contribution Business audited by PricewaterhouseCoopers LLP for each of the 2007, 2008, 2009 and 2010 fiscal years (the “ Audited Financial Statements ”) which, with respect to the 2010 fiscal year, shall not disclose any material event, development or circumstance occurring during the period commencing on January 1, 2010 and ending on September 30, 2010, which was not accurately reflected in the Borrower’s draft unaudited financial statements for such period provided to the Administrative Agent and the Arrangers prior to the date hereof, and otherwise reasonably satisfactory to the Arrangers in all material respects, (ii) no later than 60 days after the end of each fiscal quarter ended (A) after the date of the last period covered in the Audited Financial Statements and (B) at least 60 days prior to the Effective Date, unaudited consolidated or combined financial statements of the Borrower and its consolidated Subsidiaries and the Contribution Business for each such fiscal quarter, and (iii) at least 30 days prior to the Effective Date, unaudited pro forma consolidated or combined financial statements of the Borrower and its consolidated Subsidiaries giving effect to the consummation of the Transactions and the financings contemplated hereby, as detailed in the Registration Statement and reasonably satisfactory to the Arrangers.

(k) On the Effective Date the ratings with respect to the Index Debt shall be: (i) at least “BBB-” by S&P and (ii) at least “Baa3” by Moody’s, in each case with a stable or better outlook, which ratings and outlooks shall have (A) taken into account the consummation of the Separation (including the Special Distribution), the issuance by the Borrower of the Senior Notes and the Facility and (B) been reaffirmed prior to the Effective Date (which reaffirmation shall be deemed to have been provided if such ratings with such outlooks are issued in connection with any offering of unsecured debt securities by the Borrower (including the Senior Notes), taking into account the release of any guarantee of such unsecured debt securities by MRO upon consummation of the Separation).

 

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(l) The Borrower shall be in pro forma compliance with the financial covenants set forth in Sections 6.07 and 6.08 after giving effect to the consummation of the Transactions.

(m) The Lenders shall have received all documentation and other information that may be required by such Lenders in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations including the Act, including the information described in Section 9.15, to the extent requested by the Lenders in writing to the Borrower reasonably in advance of the Effective Date.

(n) In the event that the Borrower elects to make any changes to any of Schedules 3.06, 3.12, 6.01, 6.02, 6.04 and 6.05, then not later than five Business Days (or such shorter period as the Administrative Agent may approve) prior to the Effective Date, the Administrative Agent shall have received from the Borrower a written notice setting forth such proposed changes, which notice the Administrative Agent shall promptly distribute to the Lenders for their approval. To the extent that such proposed changes to any such Schedules are approved by the Required Lenders, then each such Schedule shall be deemed amended as set forth in such notice upon the Effective Date.

The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on December 31, 2011 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).

SECTION 4.02. Each Credit Event . The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of each Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction of the following conditions:

(a) (i) With respect to any Loans made and/or Letters of Credit issued on the Effective Date, the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct on and as of the Effective Date, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the Effective Date, such representations and warranties shall continue to be true and correct as of such specified earlier date and (ii) with respect to any Borrowing or the date of issuance, amendment, renewal or extension of any Letter of Credit after the Effective Date, the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, such representations and warranties shall continue to be true and correct as of such specified earlier date; provided , that (x) in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof and (y) the representations and warranties in Sections 3.04(b), 3.06(a) and 3.13 shall be made only as of the Effective Date.

(b) At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.

 

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Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in paragraph (a)(i) or (a)(ii), as applicable, and paragraph (b) of this Section.

SECTION 4.03. Conditions Precedent to Each Incremental Commitment Effective Date . Each Commitment Increase shall not become effective until the date on which each of the following conditions is satisfied:

(a) The Administrative Agent shall have received (i) an Incremental Commitment Activation Notice from each Lender (including any New Lender) providing such Commitment Increase, executed by the Borrower, the Administrative Agent and such Lender (including such New Lender) and (ii) if applicable, with respect to any New Lender, a New Lender Supplement, executed by the Borrower, the Administrative Agent, such New Lender and each Issuing Bank, each in accordance with Section 2.21.

(b) The Administrative Agent shall have received (i) a certificate (including a certification that the Borrower shall be in pro forma compliance with the financial covenants set forth in Sections 6.07 and 6.08 after giving effect to such Commitment Increase and taking into account any extension of credit hereunder on the applicable Incremental Commitment Effective Date), dated the applicable Incremental Commitment Effective Date and signed by a President, a Vice President or a Financial Officer of the Borrower and (ii) if required by the Administrative Agent, a favorable written opinion of counsel to the Borrower, each in form and substance reasonably satisfactory to the Administrative Agent and the Lenders providing such Commitment Increase.

(c) As of the applicable Incremental Commitment Effective Date, no Default shall have occurred and be continuing or would result from the occurrence of such Commitment Increase.

ARTICLE V

Affirmative Covenants

From and after the Effective Date and until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees and other amounts payable hereunder have been paid in full (other than indemnities and other contingent obligations not then due and payable and as to which no claim has been made) and all Letters of Credit have expired or terminated (or have been cash collateralized in accordance with the provisions of this Agreement or with respect to which other arrangements have been made that are satisfactory to the applicable Issuing Bank) and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:

SECTION 5.01. Financial Statements; Ratings Change and Other Information . The Borrower will furnish to the Administrative Agent for distribution to each Lender:

(a) within 90 days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied ( provided , that the requirements of this Section 5.01(a) with respect to the delivery of financial

 

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statements shall be deemed satisfied by publicly filing the Borrower’s Form 10-K for such Fiscal Year with the SEC, and such financial statements shall be deemed to have been delivered to the Administrative Agent under this Section 5.01(a) on the date such Form 10-K has been posted on the SEC website accessible through http://www.sec.gov/edgar/searchedgar/webusers.htm or such successor webpage of the SEC thereto);

(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, its consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly, in all material respects, the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes ( provided , that the requirements of this Section 5.01(b) with respect to the delivery of financial statements shall be deemed satisfied by publicly filing the Borrower’s Form 10-Q for such fiscal quarter with the SEC, and such financial statements shall be deemed to have been delivered to the Administrative Agent under this Section 5.01(b) on the date such Form 10-Q has been posted on the SEC website accessible through http://www.sec.gov/edgar/searchedgar/webusers.htm or such successor webpage of the SEC thereto);

(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a Default has occurred and is continuing as of the date of such certificate and, if such a Default has occurred and is continuing as of the date of such certificate, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.07 and 6.08 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the most recent audited financial statements provided under this Agreement and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;

(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be ( provided , that the requirements of this Section 5.01(d) shall be deemed satisfied by publicly filing such documents with the SEC, and such documents shall be deemed to have been delivered to the Administrative Agent under this Section 5.01(d) on the date such documents have been posted on the SEC website accessible through http://www.sec.gov/edgar/searchedgar/webusers.htm or such successor webpage of the SEC thereto);

(e) promptly after Moody’s or S&P shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change; and

(f) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.

SECTION 5.02. Notices of Material Events . The Borrower will furnish to the Administrative Agent for distribution to each Lender prompt written notice of the following:

 

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(a) the occurrence of any Default of which any Responsible Officer of the Borrower obtains knowledge;

(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any Subsidiary as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, would reasonably be expected to result in a Material Adverse Effect; and

(c) any change in the status of the Disclosed Matters that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.

Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

SECTION 5.03. Existence; Conduct of Business . The Borrower will, and will cause each Significant Subsidiary to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business; provided , that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03; and provided , further that this Section 5.03 shall not require the Borrower or any Significant Subsidiary to preserve or maintain any rights, licenses, permits, privileges or franchises if the Borrower shall reasonably determine that (a) the preservation and maintenance thereof is no longer desirable in the conduct of the business of the Borrower and its Subsidiaries, taken as a whole, and that the loss thereof is not disadvantageous in any material respect to the Lenders, or (b) the failure to maintain and preserve the same would not reasonably be expected, in the aggregate, to result in a Material Adverse Effect.

SECTION 5.04. Payment of Taxes and other Obligations . The Borrower will, and will cause each of its Subsidiaries to, pay its Tax liabilities and other governmental obligations which, if unpaid, would reasonably be expected to result in a Lien upon any property of the Borrower or such Subsidiary before the same shall become delinquent or in default, except to the extent that (a) the validity or amount thereof is being contested in good faith by appropriate proceedings and the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b) the failure to make such payment would not reasonably be expected to result in a Material Adverse Effect.

SECTION 5.05. Maintenance of Properties; Insurance . The Borrower will, and will cause each of its Subsidiaries to, (a) maintain all property material to the conduct of the business of the Borrower and its Subsidiaries, taken as a whole, in good working order and condition, ordinary wear and tear excepted, and (b) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations (including, without limitation, by the maintenance of adequate self-insurance reserves to the extent customary among such companies).

SECTION 5.06. Books and Records; Inspection Rights . The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and account in which complete and accurate entries, in all material respects, are made of its financial and business transactions to the extent required by GAAP and applicable law. The Borrower will, and will cause each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, at the Administrative Agent’s or such Lender’s expense, upon reasonable prior notice and subject to any applicable restrictions or limitations on access to any facility or information that is classified or restricted by contract or by law,

 

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regulation or governmental guidelines, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested; provided that advance notice of any discussion with such independent accountants shall be given to the Borrower and, so long as no Event of Default shall have occurred and be continuing, the Borrower shall have the opportunity to be present at any such discussion. The Administrative Agent and each Lender agree to keep all information obtained by them pursuant to this Section confidential in accordance with Section 9.13.

SECTION 5.07. Compliance with Laws . The Borrower will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

SECTION 5.08. Use of Proceeds and Letters of Credit . The proceeds of the Loans will be used only for the Transactions and for working capital and general corporate purposes of the Borrower and its Subsidiaries. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X. Letters of Credit will be issued only to support the general corporate purposes of the Borrower and its Subsidiaries.

ARTICLE VI

Negative Covenants

From and after the Effective Date and until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees and other amounts payable hereunder have been paid in full (other than indemnities and other contingent obligations not then due and payable and as to which no claim has been made) and all Letters of Credit have expired or terminated (or have been cash collateralized in accordance with the provisions of this Agreement or with respect to which other arrangements have been made that are satisfactory to the applicable Issuing Bank) and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:

SECTION 6.01. Indebtedness . The Borrower will not permit any Non-Guarantor Subsidiary to create, incur, assume or permit to exist any Indebtedness, except:

(a) Securitization Indebtedness in an aggregate principal amount not to exceed $1,000,000,000 at any one time outstanding;

(b) Indebtedness existing on the Effective Date which is either (i) set forth on Schedule 6.01 (as such Schedule may be updated on or prior to the Effective Date in accordance with Section 4.01(n)) or (ii) in a principal amount which is less than (x) $25,000,000 individually and (y) $50,000,000 in the aggregate;

(c) Indebtedness of any Non-Guarantor Subsidiary owing to the Borrower or any other Guarantor;

(d) Guarantees by any Non-Guarantor Subsidiary of Indebtedness of the Borrower or any Guarantor;

 

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(e) Indebtedness of any Non-Guarantor Subsidiary incurred to finance the acquisition, construction, repair, development or improvement of any fixed or capital assets, including Capital Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof; provided , that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction, repair, development or improvement;

(f) Indebtedness of any Non-Guarantor Subsidiary under performance guaranties or as an account party in respect of trade letters of credit;

(g) Indebtedness of a Person existing at the time such Person becomes a Subsidiary or is merged with or into the Borrower or any Subsidiary and not incurred in contemplation of such transaction;

(h) other Indebtedness of any Non-Guarantor Subsidiary; provided , however , that the sum of (A) the outstanding aggregate principal amount of all such Indebtedness of Non-Guarantor Subsidiaries, plus (B) to the extent not included in Indebtedness, the Attributable Debt under all Sale and Leaseback Transactions of the Borrower and its Subsidiaries permitted under Section 6.02(b), plus (C) the outstanding aggregate principal amount of all Indebtedness or other obligations secured by Liens permitted under Section 6.02(a)(vi), shall not exceed 15% of Consolidated Net Tangible Assets at the time of incurrence; and

(i) extensions, refinancings, renewals or replacements of the Indebtedness permitted above which, in the case of any such extension, refinancing, renewal or replacement, does not increase the amount of the Indebtedness being extended, refinanced, renewed or replaced, other than amounts incurred to pay the costs of such extension, refinancing, renewal or replacement.

SECTION 6.02. Liens and Sale and Leaseback Transactions . (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, except:

(i) Permitted Encumbrances;

(ii) any Lien on any property or asset of the Borrower or any Subsidiary existing on the Effective Date which is either (i) set forth on Schedule 6.02 (as such Schedule may be updated on or prior to the Effective Date in accordance with Section 4.01(n)) or (ii) securing Indebtedness or other obligations in a principal amount which is less than (x) $25,000,000 individually and (y) $50,000,000 in the aggregate;

(iii) Liens on fixed or capital assets acquired, constructed, repaired, developed, or improved by the Borrower or any Subsidiary; provided , that (i) in the case of security interests securing Indebtedness of a Non-Guarantor Subsidiary, such Indebtedness is permitted by clause (e) or (h) of Section 6.01, (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 180 days after such acquisition or the completion of such construction, repair, development or improvement and (iii) such security interests shall not apply to any other property or assets of the Borrower or any Subsidiary;

(iv) Liens on the Equity Interests or assets of any Securitization Subsidiary, or Liens on Securitization Receivables sold, contributed, financed or otherwise conveyed or pledged in connection with a Securitization Transaction, so long as the aggregate outstanding principal amount of the Securitization Indebtedness secured thereby does not exceed $1,000,000,000 at any one time;

 

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(v) Liens under any Sale and Leaseback Transaction permitted under Section 6.02(b);

(vi) Liens not otherwise permitted by the foregoing clauses of this Section securing Indebtedness or other obligations of the Borrower or any of its Subsidiaries; provided , however , that the sum of (A) the aggregate principal amount of all such Indebtedness and obligations, plus (B) the outstanding aggregate principal amount of all Indebtedness of Non-Guarantor Subsidiaries permitted under Section 6.01(h), plus (C) the Attributable Debt under all Sale and Leaseback Transactions of the Borrower and its Subsidiaries incurred under Section 6.02(b), shall not exceed 15% of Consolidated Net Tangible Assets at the time of incurrence;

(vii) Liens securing Indebtedness or other obligations of the Borrower or any Subsidiary in favor of any Loan Party;

(viii) Liens on property existing at the time such property is acquired by the Borrower or any of its Subsidiaries and not created in contemplation of such acquisition (or on repairs, renewals, replacements, additions or accessions thereto), and Liens on the assets of any Person at the time such Person becomes a Subsidiary of the Borrower and not created in contemplation of such Person becoming a Subsidiary of the Borrower (or on repairs, renewals, replacements, additions or accessions thereto), provided , that such Liens do not extend to any other assets;

(ix) Liens on Equity Interests in a Joint Venture owned by the Borrower or any Subsidiary securing Joint Venture Obligations of such Joint Venture;

(x) Liens securing obligations under any Swap Agreement, provided that the aggregate amount of all such obligations secured by such Liens shall not at any time exceed $150,000,000; and

(xi) extensions, renewals and replacements of the Liens described above, so long as there is no increase in the Indebtedness or other obligations secured thereby (other than amounts incurred to pay costs of renewal and replacement) and no additional property (other than accessions, improvements, and replacements in respect of such property) is subject to such Lien.

(b) The Borrower will not, and will not permit any Subsidiary to, enter into any Sale and Leaseback Transaction if, after giving effect to such Sale and Leaseback Transaction, the sum of (i) the Attributable Debt under all Sale and Leaseback Transactions of the Borrower and its Subsidiaries, plus (ii) the outstanding aggregate principal amount of all Indebtedness of Non-Guarantor Subsidiaries permitted under Section 6.01(h), plus (iii) the outstanding aggregate principal amount of all Indebtedness or other obligations secured by Liens permitted under Section 6.02(a)(vi), shall exceed 15% of Consolidated Net Tangible Assets at the time of incurrence.

SECTION 6.03. Fundamental Changes . The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, (a) if at the time thereof and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing, (i) any Person may merge with or into the Borrower in a transaction in which the Borrower is the surviving entity; and (ii) the Borrower may merge with or into any other Person in a transaction in which such other Person is the surviving entity (the “ Surviving Person ”) so long as (A) such Surviving Person is a corporation or other entity organized or existing under the or laws of the state of Ohio or Delaware, (B) prior to such merger, such

 

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Person is a shell company with no liabilities, (C) such Surviving Person assumes the obligations of the Borrower under this Agreement and the other Loan Documents and (D) on the date of such transaction, the Borrower delivers to the Administrative Agent a favorable written opinion of counsel for the Borrower covering such matters relating to such Surviving Person, the Loan Documents or such merger as the Administrative Agent may reasonably request, which opinion and counsel shall be reasonably satisfactory to the Administrative Agent; (b) any Subsidiary may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary; (c) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary; (d) any Subsidiary may merge into, or consolidate with, any Person other than the Borrower or any other Subsidiary if (i) such Subsidiary is the surviving entity or (ii) such other Person is the surviving entity and becomes a Subsidiary contemporaneously with such merger or consolidation; and (e) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.

SECTION 6.04. Transactions with Affiliates . The Borrower will not, and will not permit any of its Subsidiaries to, enter into or engage in any material transaction (including any sale, lease, transfer, purchase or acquisition of property or assets) with any of its Affiliates, except on terms and conditions, taken as a whole, that are substantially as favorable to the Borrower or such Subsidiary as could be obtained on an arm’s-length basis from unrelated third parties (or, if in the good faith judgment of the Borrower’s board of directors, no comparable transaction is available with which to compare any such transaction, such transaction is otherwise fair to the Borrower or such Subsidiary from a financial point of view); provided that the foregoing restriction shall not apply to (a) transactions between or among the Borrower and its Subsidiaries or between or among Subsidiaries, (b) transactions involving any employee benefit plans or related trusts of the Borrower or any of its Subsidiaries, (c) transactions pursuant to any contract or agreement outstanding as of the Effective Date and listed on Schedule 6.04 (as such Schedule may be updated on or prior to the Effective Date in accordance with Section 4.01(n)), (d) the payment of reasonable compensation, fees and expenses to, and indemnity provided on behalf of, directors and officers of the Borrower or any Subsidiary, (e) transactions pursuant to the Separation Documents and (f) transactions otherwise specifically permitted herein.

SECTION 6.05. Restrictive Agreements . The Borrower will not, and will not permit any of its Subsidiaries to, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of any Subsidiary to pay dividends or other distributions with respect to any shares of its capital stock or to make or repay loans or advances to the Borrower or any Guarantor; provided , that the foregoing shall not apply to (a) prohibitions, restrictions or conditions imposed by law or by this Agreement, (b) prohibitions, restrictions or conditions contained in, or existing by reason of, any agreement or instrument existing on the Effective Date and listed on Schedule 6.05 (as such Schedule may be updated on or prior to the Effective Date in accordance with Section 4.01(n)), (c) prohibitions, restrictions or conditions contained in, or existing by reason of, any agreement or instrument relating to any indebtedness of, or otherwise to, any Subsidiary at the time such Subsidiary was merged or consolidated with or into, or acquired by, the Borrower or a Subsidiary or became a Subsidiary and not created in contemplation thereof, (d) prohibitions, restrictions or conditions contained in, or existing by reason of, any agreement or instrument effecting a renewal, extension, refinancing, refund or replacement (or successive extensions, renewals, refinancings, refunds or replacements) of indebtedness or other obligations issued or outstanding under an agreement referred to in clauses (a) through (c) above, so long as the prohibitions, restrictions or conditions contained in any such renewal, extension, refinancing, refund or replacement agreement, taken as a whole, are not materially more restrictive than the encumbrances and restrictions contained in the original agreement, as determined in good faith by a Responsible Officer of the Borrower, (e) prohibitions, restrictions or conditions with respect to a Subsidiary under an agreement that has been entered into for the disposition of all or substantially all of the outstanding Equity Interests of or assets of such Subsidiary, provided that

 

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such disposition is otherwise not prohibited hereunder, (f) restrictions contained in joint venture agreements, partnership agreements and other similar agreements with respect to a joint ownership arrangement restricting the disposition or distribution of assets or property of, or the activities of, such joint venture, partnership or other joint ownership entity, or any of such Person’s subsidiaries, if such restrictions are not applicable to the property or assets of any other Person.

SECTION 6.06. Fiscal Year; Accounting Principles . The Borrower will not, and will not permit any of its Subsidiaries to, change (a) its current fiscal year or (b) its current method of keeping records and books of account used in the preparation of financial statements unless such change in accounting principles is required or permitted by GAAP.

SECTION 6.07. Minimum Interest Coverage Ratio . The Borrower shall maintain, as of the last day of each fiscal quarter commencing with the first fiscal quarter ending after the Effective Date, a ratio of Consolidated EBITDA for the four fiscal quarter period then ended to Consolidated Interest Expense for such four fiscal quarter period of at least 3.5 to 1.0.

SECTION 6.08. Maximum Consolidated Leverage Ratio . The Borrower shall maintain, as of the last day of each fiscal quarter commencing with the first fiscal quarter ending after the Effective Date, a ratio of Net Consolidated Total Indebtedness as of such date to Consolidated EBITDA for such four fiscal quarter period of no greater than 3.0 to 1.0.

ARTICLE VII

Events of Default

If any of the following events (“ Events of Default ”) shall occur on or after the Effective Date and until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees and other amounts payable hereunder have been paid in full (other than indemnities and other contingent obligations not then due and payable and as to which no claim has been made) and all Letters of Credit have expired or terminated (or have been cash collateralized in accordance with the provisions of this Agreement or with respect to which other arrangements have been made that are satisfactory to the applicable Issuing Bank) and all LC Disbursements shall have been reimbursed:

(a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;

(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;

(c) any representation or warranty made or deemed made by or on behalf of the Borrower or any Subsidiary in any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made;

(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), 5.03 (with respect to the Borrower’s existence) or 5.08 or in Article VI;

 

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(e) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);

(f) the Borrower or any Subsidiary shall fail to make any payment in excess of $1,000,000 in the aggregate (whether of principal, interest or fees) in respect of any Material Indebtedness, when and as the same shall become due and payable, and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness;

(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity; provided , that this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;

(h) an involuntary proceeding shall be commenced, or an involuntary petition shall be filed, in any court of competent jurisdiction seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Significant Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Significant Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered by such court;

(i) the Borrower or any Significant Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Significant Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any corporate action for the purpose of effecting any of the foregoing;

(j) the Borrower or any Significant Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;

(k) one or more final judgments (whether or not appealable) for the payment of money in an aggregate amount in excess of $100,000,000 (to the extent not covered by independent third-party insurance (other than normal deductibles) as to which the insurer has been notified of such judgment and has not issued a notice denying coverage thereof) shall be rendered by a court of competent jurisdiction against the Borrower, any Subsidiary or any combination thereof, and the same shall remain undischarged or unsatisfied for a period of 45 consecutive days (or 60 consecutive days in the case of judgments rendered in foreign jurisdictions outside of the United States of America and the District of Columbia) during which execution shall not be effectively stayed (it being understood that, for the purposes of this paragraph (k), “independent third-party insurance” shall include industry mutual insurance companies in which the Borrower or any Subsidiary has an ownership interest);

(l) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse Effect;

 

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(m) other than as a result of (i) the termination of the obligations of any Guarantor under a Subsidiary Guarantee pursuant to the terms thereof or pursuant to Section 9.09, (ii) the exchange or replacement of any promissory note hereunder (with respect to the previously existing promissory note which was so exchanged or replaced), (iii) the agreement of the Required Lenders or all Lenders, as may be required hereunder, or (iv) in accordance with the other provisions of this Agreement, the expiration or termination of the Commitments, the payment in full of the principal and interest on each Loan and all fees payable hereunder, the expiration or termination of all Letters of Credit (or the cash collateralization thereof in accordance with the provisions of this Agreement or other arrangements with respect thereto that are satisfactory to the applicable Issuing Bank) and the reimbursement of all LC Disbursements, any Loan Document (or any material provision thereof), at any time after its execution and delivery, ceases to be in full force and effect or is declared by a court of competent jurisdiction to be null and void, invalid or unenforceable; or the Borrower or any Guarantor denies in writing that it has any liability or obligation thereunder, or purports to revoke, terminate or rescind any Loan Document (other than pursuant to the terms hereof or thereof); or

(n) a Change in Control shall occur;

then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent shall at the request, or may with the consent of the Required Lenders, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter (at any time during the continuance of such event) be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.

ARTICLE VIII

The Administrative Agent

Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto.

The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.

The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a)

 

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the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby and in the other Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Facility as well as activities as Administrative Agent.

Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor approved by the Borrower (such approval not to be unreasonably withheld, conditioned or delayed); provided that no approval of the Borrower shall be necessary if an Event of Default has occurred and is continuing. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank.

 

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Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.

Any resignation or removal of JPMorgan Chase Bank, National Association or its successor as Administrative Agent pursuant to this Section shall also constitute the resignation or removal of JPMorgan Chase Bank, National Association or its successor as Swingline Lender, and any successor Administrative Agent appointed pursuant to this Section shall, upon its acceptance of such appointment, become the successor Swingline Lender for all purposes hereunder. In such event the Borrower shall prepay any outstanding Swingline Loans (together with payment of all accrued and unpaid interest thereon) made by the retiring or removed Administrative Agent in its capacity as Swingline Lender.

Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder.

Each Arranger and each institution identified as a “Syndication Agent” or “Documentation Agent” with respect to this Agreement shall have no obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity.

ARTICLE IX

Miscellaneous

SECTION 9.01. Notices . (a) Except in the case of notices and other communications expressly permitted to be given by telephone or electronic mail (and subject to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:

(i) if to the Borrower, to it at Marathon Petroleum Corporation, 539 South Main Street, Findlay, Ohio 45840, Attention of Chief Financial Officer (Telecopy No. (419) 421-2540) (Email: glpeiffer@marathonoil.com);

(ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and Agency Services Group, 1111 Fannin, 10th Floor, Houston, Texas 77002, Attention of Leslie Hill (Telecopy No. (713) 427-6307);

(iii) if to an Issuing Bank: (A) in the case of JPMorgan Chase Bank National Association, to it at JPMorgan Chase Bank, Loan and Agency Services Group, 1111 Fannin, 10th Floor,

 

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Houston, Texas 77002, Attention of Leslie Hill (Telecopy No. (713) 427-6307) and (B) in the case of any other Issuing Bank, to it at its address (or telecopy number) as separately notified in writing by such Issuing Bank to the Borrower and the Administrative Agent;

(iv) if to the Swingline Lender, to it at JPMorgan Chase Bank, Loan and Agency Services Group, 1111 Fannin, 10th Floor, Houston, Texas 77002, Attention of Leslie Hill (Telecopy No. (713) 427-6307); and

(v) if to any other Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.

(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided, that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided , that approval of such procedures may be limited to particular notices or communications.

(c) Any party hereto may change its address, telecopy number or electronic mail address for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.

SECTION 9.02. Waivers; Amendments . (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.

(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided , that the Borrower, the Administrative Agent and the Lenders providing any Commitment Increase may enter into any amendment necessary to implement the terms of such Commitment Increase in accordance with the terms of this Agreement without the consent of any other Lender; provided , further, that (subject to Section 2.19 with respect to any Defaulting Lender) no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees or other amounts (to the extent that such other amounts are then due and payable) payable hereunder, without the written consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the

 

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scheduled date of expiration of any Commitment, without the written consent of each Lender affected thereby, (iv) change Section 2.17(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) change any of the provisions of this Section or the definition of “ Required Lenders ” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender, (vi) change any of the provisions of Section 2.19, without the prior written consent of the Required Lenders, the Administrative Agent, the Issuing Banks and the Swingline Lender or (vii) release any material Guarantor from its Subsidiary Guarantee, except as provided in Section 9.09, without the written consent of each Lender; provided , further , that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be.

SECTION 9.03. Expenses; Indemnity; Damage Waiver . (a) The Borrower shall pay (i) all reasonable and documented out of pocket expenses incurred by the Administrative Agent, the Arrangers and their respective Affiliates, including the reasonable fees, charges and disbursements of Weil, Gotshal & Manges LLP, counsel for the Administrative Agent and the Arrangers, in connection with the syndication of the Facility, the preparation and administration of this Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Issuing Bank or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent, any Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.

(b) The Borrower shall indemnify the Administrative Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (and shall reimburse each Indemnitee upon demand for any reasonable legal or other expenses incurred by such Indemnitee in connection with investigating or defending any of the foregoing), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto and regardless of whether brought by a third party or by the Borrower or any of its affiliates and regardless of any exclusive or contributory negligence of any Indemnitee; provided , that (i) the foregoing indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are found by a final, non-appealable judgment of a court of competent jurisdiction to arise out of or in connection with the willful misconduct or gross negligence of such Indemnitee or the material breach by

 

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such Indemnitee of the express terms of the Loan Documents; (ii) the Borrower shall not, in connection with any such proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate law firm (and, if necessary, one firm of local and regulatory counsel in each appropriate jurisdiction and regulatory field, as applicable, at any one time for the Indemnitees as a whole; provided , that in the case of a conflict of interest where the Indemnitee affected by such conflict informs the Borrower of such conflict, the Borrower shall be responsible for the reasonable fees and expenses of one firm or counsel for each such affected Indemnitee); (iii) each Indemnitee shall consult with the Borrower from time to time at the request of the Borrower regarding the conduct of the defense in any such proceeding (other than in respect of proceedings in which the Borrower or any of its affiliates is a party adverse to such Indemnitee); and (iv) the Borrower shall not be obligated to pay an amount of any settlement entered into without its consent (which shall not be unreasonably withheld). This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim.

(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, any Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section (and without limiting the Borrower’s obligation to do so), each Lender severally agrees to pay to the Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided , that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, such Issuing Bank or the Swingline Lender in its capacity as such.

(d) To the extent permitted by applicable law and without limiting in any way the Borrower’s reimbursement or indemnification obligations set forth in paragraph (a) or (b) of this Section, no party hereto nor any of their respective directors, officers, employees and agents shall assert, and each party hereto hereby waives, any claim against each other such Person, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.

(e) All amounts due under this Section shall be payable promptly after written demand therefor.

SECTION 9.04. Successors and Assigns . (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement

 

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(including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:

(A) the Borrower; provided , that no consent of the Borrower shall be required for an assignment to (x) a Lender, an Affiliate of a Lender, an Approved Fund, or (y) if an Event of Default has occurred and is continuing, any other assignee;

(B) the Administrative Agent; provided , that no consent of the Administrative Agent shall be required for an assignment of any Commitment to any Lender, any Affiliate of a Lender or any Approved Fund; and

(C) in the case of an assignment of any Commitment or LC Exposure, each Issuing Bank.

(ii) Assignments shall be subject to the following additional conditions:

(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent (not to be unreasonably withheld or delayed); provided , that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;

(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans and the Commitment assigned;

(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500;

(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more Credit Contacts to whom all syndicate-level information (which may contain material non-public information about the Loan Parties and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws;

(E) the assignee, if it shall not be a Lender, shall be required to execute and deliver the applicable forms to the extent required under Section 2.16(f) for any Lender, and no assignment shall be effective in connection herewith unless and until such forms are so delivered; and

(F) no assignment shall be made to a Defaulting Lender.

If the consent of the Borrower is required pursuant to this Section 9.04(b) in connection with any assignment, then the Borrower shall be deemed to have provided such consent unless it has notified the Administrative Agent of its refusal to give such consent within ten Business Days following the Borrower receiving a written request for such consent with respect to such assignment.

 

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For the purposes of this Section 9.04(b), the term “ Approved Fund ” has the following meaning:

Approved Fund ” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.

(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, any Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided , that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

(c) Any Lender may, without the consent of the Borrower, the Administrative Agent, any Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a “ Participant ”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided, that (A) such Lender’s obligations under this Agreement shall remain unchanged; (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the Borrower, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly

 

63


with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided , that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the second proviso to Section 9.02(b) (other than clause (vi) thereof to the extent that any applicable change to Section 2.19 pursuant to such clause (vi) would not result in any of the changes referred to in the other clauses of such second proviso) that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 (subject to the requirements and limitations therein, including the requirements under Section 2.16(f) (it being understood that the documentation required under Section 2.16(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided , that (A) such Participant agrees to be subject to the provisions of Sections 2.16 (including Section 2.16(f)), 2.17 and 2.18 as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; (B) such Participant shall not be entitled to receive any greater payment under Sections 2.14 or 2.16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation and (C) the Borrower shall be notified promptly by the applicable Lender of each participation sold by such Lender to a Participant pursuant to this paragraph. A Participant that fails to comply with the preceding sentence shall not be entitled to any of the benefits of Sections 2.14, 2.15 and 2.16. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.17(c) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “ Participant Register ”); provided , that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) except to the Borrower as provided above and to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.

(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided , that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

SECTION 9.05. Survival . All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on

 

64


any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.

SECTION 9.06. Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, any other Loan Documents and any separate letter agreements referred to in Section 4.01(f) and any other letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder are subject to the satisfaction or waiver of the conditions set forth in Section 4.01. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronic transmission (in .pdf form) shall be effective for all purposes as delivery of a manually executed counterpart of this Agreement.

SECTION 9.07. Severability . Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

SECTION 9.08. Right of Setoff . If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower existing under this Agreement held by such Lender which are then due and payable, irrespective of whether or not such Lender shall have made any demand under this Agreement. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have. Each Lender agrees to promptly notify the Borrower and the Administrative Agent after any such setoff and application by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.

SECTION 9.09. Subsidiary Guarantees . The Borrower may (but is not required to), at any time upon 3 Business Days’ notice to the Administrative Agent, cause any of its Subsidiaries to become a Guarantor by such Subsidiary executing and delivering to the Administrative Agent a Subsidiary Guarantee. So long as no Default has occurred and is continuing under the Loan Documents (or would result from such release), (i) if all of the capital stock of a Guarantor that are owned by the Borrower or a Subsidiary are sold or otherwise disposed of in a transaction or transactions permitted by this Agreement or (ii) in the event that, immediately after giving effect to the release of any Guarantor’s Subsidiary Guarantee, all of the Indebtedness of the Non-Guarantor Subsidiaries is permitted under Section 6.01, then, in each case, promptly following the Borrower’s request, the Administrative Agent shall execute a release of such Guarantor from its Subsidiary Guarantee.

 

65


SECTION 9.10. Governing Law; Jurisdiction; Consent to Service of Process . (a) This Agreement shall be construed in accordance with and governed by the law of the State of New York.

(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement against the Borrower or its properties in the courts of any jurisdiction.

(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

SECTION 9.11. WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

SECTION 9.12. Headings . Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

SECTION 9.13. Confidentiality . (a) Each of the Administrative Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) upon the request or demand of any regulatory authority having jurisdiction over such Administrative Agent, Issuing Bank or Lender, as applicable, or its affiliates (in which case such Person shall, except with respect to any audit or examination conducted

 

66


by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority, (i) promptly notify the Borrower in advance of such disclosure, to the extent permitted by law, and (ii) so furnish only that portion of such information which the applicable Person is legally required to disclose), (c) to the extent required by any legal, judicial, administrative proceeding or other process or otherwise as required by applicable law or regulations (in which case such Administrative Agent, Issuing Bank or Lender, as applicable, shall (i) promptly notify the Borrower in advance of such disclosure, to the extent permitted by law, and (ii) so furnish only that portion of such information which the applicable Person is legally required to disclose), (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject to an agreement containing provisions no less restrictive than those of this Section, to any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis from a source other than the Borrower or any of its Affiliates; provided , that (notwithstanding the foregoing) no such nonpublic information which contains projections or forecasts with respect to the Borrower or any of its Affiliates shall be disclosed, disseminated or otherwise made available pursuant to clause (f) above. For the purposes of this Section, “ Information ” means all information received from the Borrower or any of its Subsidiaries (or MRO, to the extent MRO is an Affiliate of the Borrower) relating to the Borrower or any of its Affiliates or their business, other than any such information that is available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the Borrower or any of its Affiliates. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

(b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN 9.13(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.

(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.

SECTION 9.14. Interest Rate Limitation . Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively, the “ Charges ”), shall exceed the maximum lawful rate (the “ Maximum Rate ”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate

 

67


of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.

SECTION 9.15. USA PATRIOT Act . Each Lender that is subject to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Act ”) hereby notifies the Borrower that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with the Act.

 

68


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

MARATHON PETROLEUM CORPORATION
By:  

/s/ P.C. Reinbolt

  Name:   P.C. Reinbolt
  Title:   Vice President

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent,

as an Issuing Bank and as Lender

By:  

/s/ Marshall Trenckmann

  Name:   Marshall Trenckmann
  Title:   Vice President

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


MORGAN STANLEY BANK, as Lender
By:  

/s/ Anish Shah

  Name:   Anish Shah
  Title:   Authorized Signatory

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


BANK OF AMERICA, N.A., as Lender
By:  

/s/ Ronald E. McKaig

  Name:   Ronald E. McKaig
  Title:   Managing Director

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


Citibank, N.A., as Lender
By:  

/s/ James F. Reilly

  Name:   James F. Reilly
  Title:   Vice President

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


The Royal Bank of Scotland plc, as Lender
By:  

/s/ Steve Ray

  Name:   Steve Ray
  Title:   Director

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


BNP Paribas, as Lender
By:  

/s/ Larry Robinson

  Name:   Larry Robinson
  Title:   Director
By:  

/s/ Betsy Jocher

  Name:   Betsy Jocher
  Title:   Director

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


DEUTSCHE BANK AG NEW YORK BRANCH, as

Lender

By:  

/s/ Philippe Sandmeier

  Name:   Philippe Sandmeier
  Title:   Managing Director
By:  

/s/ Ming K. Chu

  Name:   Ming K. Chu
  Title:   Vice President

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


DnB NOR Bank ASA, as Lender
By:  

/s/ Philip F. Kurpiewski

  Name:   Philip F. Kurpiewski
  Title:   Senior Vice President
By:  

/s/ Kristin Riise

  Name:   Kristin Riise
  Title:   First Vice President

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


Fifth Third Bank, as Lender
By:  

/s/ Mike Mendenhall

  Name:   Mike Mendenhall
  Title:   Vice President

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


PNC Bank, National Association, as Lender
By:  

/s/ Thomas E. Redmond

  Name:   Thomas E. Redmond
  Title:   Senior Vice President

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


SOCIETE GENERALE, as Lender
By:  

/s/ Scott Mackey

  Name:   Scott Mackey
  Title:   Director

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


Sumitomo Mitsui Banking Corporation, as Lender
By:  

/s/ William M. Ginn

  Name:   William M. Ginn
  Title:   General Manager

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as Lender
By:  

/s/ William S. Rogers

  Name:   William S. Rogers
  Title:   Authorized Signatory

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


U.S. BANK, NATIONAL ASSOCIATION, as Lender
By:  

/s/ John Prigge

  Name:   John Prigge
  Title:   Vice President

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


THE BANK OF NOVA SCOTIA, as Lender
By:  

/s/ Marc Graham

  Name:   Marc Graham
  Title:   Director

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


SCOTIABANC INC., as Lender
By:  

/s/ J.F. Todd

 

Name:

  J.F. Todd
  Title:   Managing Director

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


Banco Bilbao Vizcaya Argentaria, S.A. – New York

Branch, as Lender

By:  

/s/ Michael Oka

  Name:   Michael Oka
  Title:   Executive Director
By:  

/s/ Michael D’Anna

  Name:   Michael D’Anna
  Title:   Executive Director

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


Comerica Bank, as Lender
By:  

/s/ Lad Perenyi

  Name:   Lad Perenyi
  Title:   Vice President

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


The Northern Trust Company, as Lender
By:  

/s/ Jeffrey P. Sullivan

  Name:   Jeffrey P. Sullivan
  Title:   Vice President

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


RIYAD BANK, HOUSTON AGENCY, as Lender
By:  

/s/ William B. Shepard

  Name:   William B. Shepard
  Title:   General Manager
By:  

/s/ Paul N. Travis

  Name:   Paul N. Travis
  Title:  

Vice President and Head of Corporate

Finance

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


The Bank of New York Mellon, as Lender
By:  

/s/ Hussam S. Alsahlani

  Name:   Hussam S. Alsahlani
  Title:   Vice President

 

[S IGNATURE P AGE T O R EVOLVING C REDIT A GREEMENT ]


SCHEDULE 2.01

COMMITMENTS

 

LENDER

   COMMITMENT  

JPMorgan Chase Bank, National Association

   $ 165,000,000   

Morgan Stanley Bank, N.A.

   $ 165,000,000   

Bank of America, N.A.

   $ 165,000,000   

Citibank, N.A.

   $ 165,000,000   

The Royal Bank of Scotland plc

   $ 165,000,000   

BNP Paribas

   $ 100,000,000   

Deutsche Bank AG New York Branch

   $ 100,000,000   

DnB NOR Bank ASA

   $ 100,000,000   

Fifth Third Bank

   $ 100,000,000   

PNC Bank, National Association

   $ 100,000,000   

Societe Generale

   $ 100,000,000   

Sumitomo Mitsui Banking Corporation

   $ 100,000,000   

The Bank of Tokyo Mitsubishi, UFJ., Ltd.

   $ 100,000,000   

US Bank, National Association

   $ 100,000,000   

The Bank of Nova Scotia

   $ 50,000,000   

Scotiabank Inc.

   $ 50,000,000   

Banco Bilbao Vizcaya Argentaria, S.A. - New York Branch

   $ 45,000,000   

Comerica Bank

   $ 45,000,000   

The Northern Trust Company

   $ 45,000,000   

Riyad Bank, Houston Agency

   $ 20,000,000   

The Bank of New York Mellon

   $ 20,000,000   

Total

   $ 2,000,000,000.00   


EXHIBIT A

ASSIGNMENT AND ASSUMPTION

This Assignment and Assumption (the “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [ Insert name of Assignor ] (the “ Assignor ”) and [ Insert name of Assignee ] (the “ Assignee ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Revolving Credit Agreement identified below (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto (the “ Standard Terms and Conditions ”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit, guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “ Assigned Interest ”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.

 

1.    Assignor:   

 

 
2.    Assignee:   

 

 
      [and is an Affiliate/Approved Fund of [ identify Lender ] 1 ]
3.    Borrower(s):   

 

 
4.    Administrative Agent:   

 

  , as the administrative agent under the Credit Agreement
5.    Credit Agreement:        The $2,000,000,000 Revolving Credit Agreement dated as of March 11, 2011, among Marathon Petroleum Corporation, the Lenders parties thereto, and JPMorgan Chase Bank, National Association, as Administrative Agent

 

1

Select as applicable.

 

A-1


6. Assigned Interest:

 

Aggregate Amount of

Commitment/Loans for

all Lenders

   Amount of
Commitment/Loans
Assigned
     Percentage Assigned of
Commitment/Loans 2
 

$

   $            

$

   $            

$

   $            

Effective Date:                   , 20      [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in which the Assignee designates one or more Credit Contacts to whom all syndicate-level information (which may contain material non-public information about the Loan Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws.

The terms set forth in this Assignment and Assumption are hereby agreed to:

 

ASSIGNOR

[NAME OF ASSIGNOR]

By:  

 

  Title:

ASSIGNEE

[NAME OF ASSIGNEE]

By:  

 

  Title:

[Consented to and] 3 Accepted:

 

2

Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.

3

To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.

 

A-2


JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as

Administrative Agent

By  

 

  Title:
[Consented to:] 4
[NAME OF RELEVANT PARTY]
By  

 

Title:  

 

4

To be added only if the consent of the Borrower and/or other parties (e.g. Swingline Lender, Issuing Bank) is required by the terms of the Credit Agreement.

 

A-3


ANNEX 1 TO

ASSIGNMENT AND ASSUMPTION

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

1. Representations and Warranties .

1.1 Assignor . The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Agreement or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of the Agreement or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under the Agreement.

1.2. Assignee . The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (v) if it is a Non-U.S. Lender, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Agreement, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Agreement are required to be performed by it as a Lender.

2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.

3. General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

 

A-4


EXHIBIT B

FORM OF BORROWING REQUEST

JPM ORGAN C HASE B ANK , N.A.

as Administrative Agent under the

Credit Agreement referred to below

Loan and Agency Services Group

1111 Fannin, 10th Floor

Houston, TX 77002

Attention: Leslie Hill

                  , 20     

 

  Re: M ARATHON P ETROLEUM C ORPORATION (the “ Borrower ”)

Reference is made to the Revolving Credit Agreement, dated as of March 11, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, the Lenders from time to time party thereto and JPMorgan Chase Bank, National Association, as Administrative Agent. Capitalized terms used herein and not otherwise defined herein are used herein as defined in the Credit Agreement.

The Borrower hereby gives you notice, irrevocably, pursuant to Section 2.03 (Requests for Revolving Borrowings) of the Credit Agreement that the undersigned hereby requests a Borrowing of Revolving Loans under the Credit Agreement and, in that connection, sets forth below the information relating to such Borrowing (the “ Proposed Borrowing ”) as required by Section 2.03 (Requests for Revolving Borrowings) of the Credit Agreement:

(a) the aggregate principal amount of the Proposed Borrowing is $              ; 5

(b) the date of the Proposed Borrowing is                   , 20      (the “ Funding Date ”); 6

(c) the Proposed Borrowing is [an ABR Revolving Borrowing] [a Eurodollar Borrowing];

(d) [such Eurodollar Borrowing shall have an initial Interest Period of [one] [two] [three] [six] month[s];] and

(e) the funds of the Proposed Borrowing are to be disbursed to [Account Name and Number].

 

5 For any Eurodollar Revolving Borrowing, such Proposed Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000.

For any ABR Revolving Borrowing, such Proposed Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000.

 

6 Such Funding Date must be a Business Day.

 

B-1


The undersigned hereby certifies as follows:

(a) the applicable representations and warranties of the Loan Parties set forth in the Credit Agreement and the other Loan Documents are true and correct on and as of the Funding Date, to the extent required by Section 4.02(a) of the Credit Agreement; and

(b) at the time of and immediately after giving effect to the Proposed Borrowing on the Funding Date, no Default has occurred and is continuing.

 

M ARATHON P ETROLEUM C ORPORATION

By:

 

 

Name:

 

Title:

 

 

B-2


EXHIBIT C

FORM OF INTEREST ELECTION REQUEST

JPM ORGAN C HASE B ANK , N.A.

as Administrative Agent under the

Credit Agreement referred to below

Loan and Agency Services Group

1111 Fannin, 10th Floor

Houston, TX 77002

Attention: Leslie Hill

                  , 20     

 

  Re: M ARATHON P ETROLEUM C ORPORATION (the “ Borrower ”)

Reference is made to the Revolving Credit Agreement, dated as of March 11, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, the Lenders from time to time party thereto and JPMorgan Chase Bank, National Association, as Administrative Agent. Capitalized terms used herein and not otherwise defined herein are used herein as defined in the Credit Agreement.

The Borrower hereby gives you notice, irrevocably, pursuant to Section 2.07 (Interest Elections) of the Credit Agreement that it elects to [continue the Borrowing listed below, or a portion thereof as described below] [convert the Borrowing listed below, or a portion thereof as described below, to a different Type], and in that connection sets forth below the terms on which such [conversion] [continuation] is to be made. The applicable Borrowing is a Borrowing of $              in principal amount of presently outstanding Revolving Loans that are [ABR Loans] [Eurodollar Loans having an Interest Period ending on                   , 20      ].

 

(a)   

The amount of the Borrowing to which this Interest Election

Request applies: 7

  

 

 
(b)    The effective date of the election (which is a Business Day):   

 

 
(c)    Type of Borrowing following [conversion] [continuation]:    [ABR Revolving] [Eurodollar]
(d)    Interest Period and the last day thereof: 8    [one] [two] [three] [six] month[s]
     

 

 

7

If different options are being elected with respect to different portions of such Borrowing, specify the portions thereof to be allocated to each resulting Borrowing and specify the information requested in clauses (b), (c) and (d) for each resulting Borrowing.

8

For Eurodollar Borrowings only. Shall be subject to the definition of “Interest Period” in the Credit Agreement.

 

C-1


M ARATHON P ETROLEUM C ORPORATION

By:

 

 

Name:

 

Title:

 

 

C-2


EXHIBIT D

FORM OF NOTE

 

Lender: [N AME OF L ENDER ]   New York, New York
Principal Amount: [$              ]   [                ], 20[    ]

F OR VALUE RECEIVED , the undersigned, M ARATHON P ETROLEUM C ORPORATION , a Delaware corporation (the “ Borrower ”), hereby promises to pay to the order of the Lender set forth above (the “ Lender ”) the principal sum of [              dollars ($              )](the “ Principal Amount ”), or such lesser amount as shall equal the aggregate unpaid principal amount of all Revolving Loans (as defined in the Credit Agreement referred to below) of the Lender to the Borrower, payable at such times, and in such amounts, as are specified in the Credit Agreement.

The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan from the date such Revolving Loan is made until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.

Both principal and interest payable to the Lender under this Note shall be payable in dollars (as defined in the Credit Agreement referred to below) to JPMorgan Chase Bank, National Association, as Administrative Agent, at 270 Park Avenue, New York, New York 10017, in immediately available funds.

This Note is issued pursuant to, governed by and is entitled to the benefits of, the Revolving Credit Agreement, dated as of March 11, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Marathon Petroleum Corporation (the “ Borrower ”), the Lenders from time to time party thereto and JPMorgan Chase Bank, National Association, as Administrative Agent. Capitalized terms used herein and not defined herein are used herein as defined in the Credit Agreement.

The Credit Agreement, among other things, (a) provides for the making of Revolving Loans by the Lender to the Borrower in an aggregate amount not to exceed at any time outstanding the Principal Amount set forth above, the indebtedness of the Borrower resulting from such Revolving Loans being evidenced by this Note and (b) contains provisions for acceleration of the maturity of the unpaid principal amount of this Note upon the happening of certain stated events and also for prepayments on account of the principal hereof prior to the maturity hereof upon the terms and conditions therein specified.

Demand, diligence, presentment, protest and notice of non-payment and protest are hereby waived by the Borrower.

This Note shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

 

D-1


I N WITNESS WHEREOF , the Borrower has caused this Note to be executed and delivered by its duly authorized officer as of the day and year set forth above.

 

M ARATHON P ETROLEUM C ORPORATION

By:

 

 

Name:

 

Title:

 

 

D-2


EXHIBIT E-1

FORM OF

U.S. TAX CERTIFICATE

(For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Revolving Credit Agreement dated as of March 11, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Marathon Petroleum Corporation, the Lenders from time to time party thereto and JPMorgan Chase Bank, National Association, as Administrative Agent.

Pursuant to the provisions of Section 2.16 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code and (v) the interest payments in question are not effectively connected with the undersigned’s conduct of a U.S. trade or business.

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent and (ii) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF LENDER]
By:  

 

  Name:
  Title:
Date:                     , 201   

 

E-1


EXHIBIT E-2

FORM OF

U.S. TAX CERTIFICATE

(For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Revolving Credit Agreement dated as of March 11, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Marathon Petroleum Corporation, the Lenders from time to time party thereto and JPMorgan Chase Bank, National Association, as Administrative Agent.

Pursuant to the provisions of Section 2.16 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such Loan(s) (as well as any note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to the Credit Agreement, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected with the undersigned’s or its partners/members’ conduct of a U.S. trade or business.

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of its partners/members claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent and (ii) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF LENDER]
By:  

 

  Name:
  Title:
Date:                     , 201     

 

E-2


EXHIBIT E-3

FORM OF

U.S. TAX CERTIFICATE

(For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Revolving Credit Agreement dated as of March 11, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Marathon Petroleum Corporation, the Lenders from time to time party thereto and JPMorgan Chase Bank, National Association, as Administrative Agent.

Pursuant to the provisions of Section 2.16 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (v) the interest payments in question are not effectively connected with the undersigned’s conduct of a U.S. trade or business.

The undersigned has furnished its participating Lender with a certificate of its non-U.S. person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing and (ii) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF LENDER]
By:  

 

  Name:
  Title:
Date:                     , 201   

 

E-3


EXHIBIT E-4

FORM OF

U.S. TAX CERTIFICATE

(For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Revolving Credit Agreement dated as of March 11, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Marathon Petroleum Corporation, the Lenders from time to time party thereto and JPMorgan Chase Bank, National Association, as Administrative Agent.

Pursuant to the provisions of Section 2.16 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected with the undersigned’s or its partners/members’ conduct of a U.S. trade or business.

The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of its partners/members claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (ii) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF PARTICIPANT]
By:  

 

  Name:
  Title:
Date:                     , 201   

 

E-4


EXHIBIT F-1

FORM OF INCREMENTAL COMMITMENT ACTIVATION NOTICE

 

To: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative

Agent under the Credit Agreement referred to below

Reference is hereby made to the Revolving Credit Agreement dated as of March 11, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Marathon Petroleum Corporation, the Lenders from time to time party thereto and JPMorgan Chase Bank, National Association, as Administrative Agent. Terms defined in the Credit Agreement shall have their defined meanings when used herein.

This notice is an Incremental Commitment Activation Notice referred to in the Credit Agreement, and the Borrower and each of the Lenders party hereto hereby notify you that:

 

  1. Each Lender party hereto agrees to make an Incremental Commitment in the amount set forth opposite such Lender’s name below under the caption “Incremental Commitment Amount.”

 

  2. The proposed Incremental Commitment Effective Date is                  , 201    .

 

F-1-1


IN WITNESS WHEREOF, the undersigned have executed this Incremental Commitment Activation Notice this      day of                   , 20      .

 

    MARATHON PETROLEUM CORPORATION
  By:  

 

    Name:
    Title: Treasurer
Incremental Commitment Amount   [NAME OF LENDER]
$    
  By:  

 

    Name:
    Title:

Accepted this      day of

                 , 201    .

 

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent

By  

 

  Name:
  Title:

 

F-1-2


EXHIBIT F-2

FORM OF NEW LENDER SUPPLEMENT

NEW LENDER SUPPLEMENT (this “ New Lender Supplement ”), dated              , 20__, to the Revolving Credit Agreement dated as of March 11, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Marathon Petroleum Corporation, the Lenders from time to time party thereto and JPMorgan Chase Bank, National Association, as Administrative Agent.

W I T N E S S E T H :

WHEREAS, the Credit Agreement provides in Section 2.21 thereof that any bank, financial institution or other entity may become a party to the Credit Agreement with the consent of the Borrower, the Administrative Agent and the Issuing Banks (which consent shall not be unreasonably withheld) by executing and delivering to the Borrower and the Administrative Agent a supplement to the Credit Agreement in substantially the form of this New Lender Supplement; and

WHEREAS, the undersigned now desires to become a party to the Credit Agreement as a Lender;

NOW, THEREFORE, the undersigned hereby agrees as follows:

1. The undersigned agrees to be bound by the provisions of the Credit Agreement, and agrees that it shall, on the date this New Lender Supplement is accepted by the Borrower, the Administrative Agent and the Issuing Banks, become a Lender for all purposes of the Credit Agreement to the same extent as if originally a party thereto, with a Commitment in the amount set forth opposite its name in the Incremental Commitment Activation Notice executed by it in connection herewith.

2. The undersigned (a) represents and warrants that it is legally authorized to enter into this New Lender Supplement; (b) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 3.04(a) thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this New Lender Supplement; (c) agrees that it has made and will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or any instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement or any instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of the Credit Agreement and will perform in accordance with its terms all the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender including, without limitation, any applicable obligations pursuant to Section 2.16(f) of the Credit Agreement.

3. The address of the undersigned for notices for the purposes of the Credit Agreement is as follows: [                                          ]

4. Terms defined in the Credit Agreement shall have their defined meanings when used herein.

 

F-2-1


IN WITNESS WHEREOF, the undersigned has caused this New Lender Supplement to be executed and delivered by a duly authorized officer on the date first above written.

 

[NAME OF LENDER]
By  

 

  Name:
  Title:

Accepted this      day of

                 , 201    .

 

MARATHON PETROLEUM CORPORATION
By  

 

  Name:
  Title:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent
By  

 

  Name:
  Title:
[                      ],
as Issuing Bank
By  

 

  Name:
  Title:
[                      ],
as Issuing Bank
By  

 

  Name:
  Title:

 

F-2-2


EXHIBIT G

FORM OF SUBSIDIARY GUARANTEE

GUARANTEE dated as of                   ,          (this “ Guarantee ”), by each of the entities listed on the signature pages hereof (each a “ Guarantor ” and collectively, the “ Guarantors ”), in favor of the Administrative Agent, each Lender, each Issuing Bank (as each such term is defined in the Credit Agreement referred to below) and each other holder of an Obligation (as such term is defined below) (each, a “ Guarantied Party ” and, collectively, the “ Guarantied Parties ”).

W i t n e s s e t h:

W HEREAS , pursuant to the Revolving Credit Agreement, dated as of March 11, 2011 (together with all appendices, exhibits and schedules thereto and as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”; capitalized terms defined therein and used herein having the meanings given to them in the Credit Agreement), among Marathon Petroleum Corporation (the “ Borrower ”), the Lenders from time to time party thereto and JPMorgan Chase Bank, National Association, as Administrative Agent (in such capacity, the “ Administrative Agent ”), the Lenders have severally agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;

W HEREAS , each Guarantor is a direct or indirect Subsidiary of the Borrower;

W HEREAS , each Guarantor will receive substantial direct and indirect benefits from the making of the Loans, the issuance of the Letters of Credit and the granting of the other financial accommodations to the Borrower under the Credit Agreement; and

W HEREAS , the Borrower and the Guarantors have elected, pursuant to Section 9.09 (Subsidiary Guarantees) of the Credit Agreement, to have the Guarantors execute and deliver this Guarantee for the benefit of the Guarantied Parties.

N OW , T HEREFORE , in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I

Guarantee

(a) Each Guarantor hereby absolutely, unconditionally and irrevocably guarantees, jointly with the other Guarantors and severally, as primary obligor and not merely as surety, the full and punctual payment when due and in the currency due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other Loan Document, of all the Obligations (as defined below), whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against the Borrower, whether now or hereafter existing, and whether due or to become due, including principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the commencement of any proceeding under Title 11 of the United States Code (the “ Bankruptcy Code ”), or any applicable provisions of comparable state or

 

G-1


foreign law, whether or not such interest is an allowed claim in such proceeding), fees and costs of collection. This Guarantee constitutes a guaranty of payment and not of collection.

(b) Each Guarantor further agrees that, if any payment made by Borrower or any other Person and applied to the Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, then, to the extent of such payment or repayment, any such Guarantor’s liability hereunder shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, this Guarantee shall have been cancelled or surrendered, this Guarantee shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such Guarantor in respect of the amount of such payment.

As used herein, the term “ Obligations ” means all obligations of the Credit Parties to pay (a) the aggregate outstanding principal amount of, and all unpaid interest on, Loans, (b) all reimbursement obligations with respect to the Total L/C Exposure and all obligations of the Borrower under any Loan Document to provide cash collateral for L/C Exposure, and (c) all other outstanding liabilities, obligations and indebtedness owing by the Borrower to the Administrative Agent, any Lender, any Issuing Bank or any other Indemnitee arising under the Credit Agreement or any other Loan Document, of every type and description (whether by reason of an extension of credit, opening or amendment of a letter of credit or payment of any draft drawn thereunder, loan, guarantee, indemnification or otherwise), present or future, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired and whether or not evidenced by any note, guarantee or other instrument for the payment of money.

ARTICLE II

Limitation of Guarantee

Any term or provision of this Guarantee or any other Loan Document to the contrary notwithstanding, the maximum aggregate amount of the Obligations for which any Guarantor shall be liable shall not exceed the maximum amount for which such Guarantor can be liable without rendering this Guarantee or any other Loan Document, as it relates to such Guarantor, subject to avoidance under applicable law relating to fraudulent conveyance or fraudulent transfer (including Section 548 of the Bankruptcy Code or any applicable provisions of comparable state law) (collectively, “ Fraudulent Transfer Laws ”), in each case after giving effect (a) to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under such Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor in respect of intercompany Indebtedness to the Borrower to the extent that such Indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder) and (b) to the value as assets of such Guarantor (as determined under the applicable provisions of such Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights held by such Guarantor pursuant to (i) applicable federal, state, local and foreign laws, rules and regulations, orders, judgments, decrees and other determinations of any Governmental Authority or arbitrator and common law, (ii) Article III (Contribution) of this Guarantee or (iii) any other obligation, agreement, undertaking or similar provisions of any security or any agreement, undertaking, contract, lease, indenture, mortgage, deed of trust or other instrument (excluding a Loan Document) providing for an equitable allocation among such

 

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Guarantor and other Subsidiaries or Affiliates of the Borrower of obligations arising under this Guarantee or other guaranties of the Obligations by such parties.

ARTICLE III

Contribution

To the extent that any Guarantor shall be required hereunder to pay a portion of the Obligations exceeding the greater of (a) the amount of the economic benefit actually received by such Guarantor from the Loans and the other financial accommodations provided to the Borrower under the Loan Documents and (b) the amount such Guarantor would otherwise have paid if such Guarantor had paid the aggregate amount of the Obligations (excluding the amount thereof repaid by the Borrower) in the same proportion as such Guarantor’s net worth at the date enforcement is sought hereunder bears to the aggregate net worth of all the Guarantors at the date enforcement is sought hereunder, then such Guarantor shall be reimbursed by such other Guarantors for the amount of such excess, pro rata, based on the respective net worths of such other Guarantors at the date enforcement hereunder is sought.

ARTICLE IV

Authorization; Other Agreements

The Guarantied Parties are hereby authorized, without notice to, or demand upon, any Guarantor, which notice and demand requirements each are expressly waived hereby, and without discharging or otherwise affecting the obligations of such Guarantor hereunder (which obligations shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time, to do each of the following:

(a) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Obligations, or any part of them, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including the other Loan Documents) now or hereafter executed by the Borrower and delivered to the Guarantied Parties or any of them, including any increase or decrease of principal or the rate of interest thereon;

(b) waive or otherwise consent to noncompliance with any provision of any instrument evidencing the Obligations, or any part thereof, or any other instrument or agreement in respect of the Obligations (including the other Loan Documents) now or hereafter executed by the Borrower and delivered to the Guarantied Parties or any of them;

(c) accept partial payments on the Obligations;

(d) receive, take and hold security or collateral for the payment of the Obligations or any part of them and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, otherwise alter and release any such security or collateral;

(e) settle, release, compromise, collect or otherwise liquidate the Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any security or collateral for the Obligations or any part of them or any other guaranty therefor, in any manner;

 

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(f) add, release or substitute any one or more other guarantors, makers or endorsers of the Obligations or any part of them and otherwise deal with the Borrower or any other guarantor, maker or endorser;

(g) apply to the Obligations any payment or recovery (x) from the Borrower, from any other guarantor, maker or endorser of the Obligations or any part of them or (y) from any Guarantor in such order as provided herein, in each case whether such Obligations are secured or unsecured or guaranteed or not guaranteed by others;

(h) apply to the Obligations any payment or recovery from any Guarantor of the Obligations or any sum realized from security furnished by such Guarantor upon its indebtedness or obligations to the Guarantied Parties or any of them, in each case whether or not such indebtedness or obligations relate to the Obligations; and

(i) refund at any time any payment received by any Guarantied Party in respect of any Obligation, and payment to such Guarantied Party of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Guarantee shall have been cancelled or surrendered, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any Guarantor hereunder in respect of the amount so refunded;

even if any right of reimbursement or subrogation or other right or remedy of any Guarantor is extinguished, affected or impaired by any of the foregoing (including any election of remedies by reason of any judicial, non-judicial or other proceeding in respect of the Obligations that impairs any subrogation, reimbursement or other right of such Guarantor).

ARTICLE V

Guarantee Absolute and Unconditional

Each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations under this Guarantee are absolute and unconditional and shall not be discharged or otherwise affected as a result of any of the following:

(a) the invalidity or unenforceability of any of the Borrower’s obligations under the Credit Agreement or any other Loan Document or any other agreement or instrument relating thereto, or any security for, or other guaranty of the Obligations or any part of them;

(b) the absence of any attempt to collect the Obligations or any part of them from the Borrower or other action to enforce the same;

(c) any Guarantied Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code or any applicable provisions of comparable state or foreign law;

(d) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code or any applicable provisions of comparable state or foreign law;

 

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(e) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guarantied Party’s claim (or claims) for repayment of the Obligations ;

(f) any use of cash collateral under Section 363 of the Bankruptcy Code;

(g) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;

(h) the avoidance of any Lien in favor of the Guarantied Parties or any of them for any reason;

(i) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any of the Borrower’s other Subsidiaries, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest thereon) in or as a result of any such proceeding;

(j) failure by any Guarantied Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding;

(k) any action taken by any Guarantied Party if such action is authorized hereby;

(l) any change in the corporate existence or structure of the Borrower or any other Loan Party;

(m) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Guarantor or any other Person against any Guarantied Party;

(n) any applicable federal, state, local and foreign laws, rules and regulations, orders, judgments, decrees and other determinations of any Governmental Authority or arbitrator and common law affecting any term of any Guarantor’s obligations under this Guarantee; or

(o) any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor or any other obligor on any obligations, other than the payment in full of the Obligations (other than indemnities and other contingent obligations not then due and payable and as to which no claim has been made as of the time of determination) and termination of the Commitments.

ARTICLE VI

Waivers

Each Guarantor hereby waives diligence, promptness, presentment, demand for payment or performance and protest and notice of protest, notice of acceptance and any other notice in respect of the Obligations or any part of them, and any defense arising by reason of any disability or other defense of the Borrower or any of its Subsidiaries. Subject to Article XV

 

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below (Termination), in connection with the foregoing, each Guarantor covenants that its obligations hereunder shall not be discharged, except by complete performance.

ARTICLE VII

Reliance

Each Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower and any endorser and other guarantor of all or any part of the Obligations, and of all other circumstances bearing upon the risk of nonpayment of the Obligations, or any part thereof, that diligent inquiry would reveal, and each Guarantor hereby agrees that no Guarantied Party shall have any duty to advise any Guarantor of information known to it regarding such condition or any such circumstances. In the event any Guarantied Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to any Guarantor, such Guarantied Party shall be under no obligation (a) to undertake any investigation not a part of its regular business routine, (b) to disclose any information that such Guarantied Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (c) to make any other or future disclosures of such information or any other information to any Guarantor.

ARTICLE VIII

Waiver of Subrogation and Contribution Rights

Until the Obligations have been irrevocably paid in full (other than indemnities and other contingent obligations not then due and payable and as to which no claim has been made as of the time of determination) and the Commitments have been terminated, the Guarantors shall not enforce or otherwise exercise any right of subrogation to any of the rights of the Guarantied Parties or any part of them against the Borrower or any right of reimbursement or contribution or similar right against the Borrower by reason of this Guarantee or by any payment made by any Guarantor in respect of the Obligations.

ARTICLE IX

Default; Remedies

The obligations of each Guarantor hereunder are independent of and separate from the Obligations. Upon any Event of Default, the Administrative Agent may, at its sole election, proceed directly and at once, without notice, against any Guarantor to collect and recover the full amount or any portion of the Obligations then due, without first proceeding against the Borrower or any other guarantor of the Obligations, or joining the Borrower or any other guarantor in any proceeding against any Guarantor.

ARTICLE X

Irrevocability

Subject to Article XV (Termination) below, this Guarantee shall be irrevocable as to the Obligations (or any part thereof) until the Commitments have been terminated and all monetary Obligations then outstanding have been irrevocably repaid in cash, at which time this

 

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Guarantee shall automatically be cancelled. Upon such cancellation and at the written request of any Guarantor or its successors or assigns, and at the cost and expense of such Guarantor or its successors or assigns, the Administrative Agent shall execute in a timely manner a satisfaction of this Guarantee and such instruments, documents or agreements as are necessary or desirable to evidence the termination of this Guarantee.

ARTICLE XI

Setoff

If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender to or for the credit or the account of any Guarantor against any of and all the Obligations held by such Lender which are then due and payable, irrespective of whether or not such Lender shall have made any demand under this Guarantee. The rights of each Lender under this Article XI are in addition to other rights and remedies (including other rights of setoff) which such Lender may have. Each Lender agrees to promptly notify the applicable Guarantor and the Administrative Agent after any such setoff and application by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.

ARTICLE XII

No Marshalling

Each Guarantor consents and agrees that no Guarantied Party or Person acting for or on behalf of any Guarantied Party shall be under any obligation to marshal any assets in favor of any Guarantor or against or in payment of any or all of the Obligations.

ARTICLE XIII

Representations and Warranties; Covenants

Each Guarantor hereby represents and warrants that the representations and warranties as to it made by the Borrower in Article III (Representations and Warranties) of the Credit Agreement (other than the representations and warranties in Sections 3.04(b), 3.06(a) and 3.13 of the Credit Agreement) with respect to any Borrowing or the date of issuance, amendment, renewal or extension of any Letter of Credit, in each case on or after the date hereof, are true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, such representations and warranties are true and correct as of such specified earlier date; provided , that in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.

 

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ARTICLE XIV

Miscellaneous

SECTION 14.01. Successors and Assigns . This Guarantee shall be binding upon each Guarantor and upon the successors and assigns of such Guarantors and shall inure to the benefit of the Guarantied Parties and their respective successors and assigns; all references herein to the Borrower and to the Guarantors shall be deemed to include their respective successors and assigns. The successors and assigns of the Guarantors and the Borrower shall include, without limitation, their respective receivers, trustees and debtors-in-possession. All references to the singular shall be deemed to include the plural where the context so requires.

SECTION 14.02. Enforcement; Waivers; Amendments

(a) No delay on the part of any Guarantied Party in the exercise of any right or remedy arising under this Guarantee, the Credit Agreement, any other Loan Document or otherwise with respect to all or any part of the Obligations or any other guaranty of or security for all or any part of the Obligations shall operate as a waiver thereof, and no single or partial exercise by any such Person of any such right or remedy shall preclude any further exercise thereof. Failure by any Guarantied Party at any time or times hereafter to require strict performance by the Borrower, any Guarantor, any other guarantor of all or any part of the Obligations or any other Person of any provision, warranty, term or condition contained in any Loan Document now or at any time hereafter executed by any such Persons and delivered to any Guarantied Party shall not waive, affect or diminish any right of any Guarantied Party at any time or times hereafter to demand strict performance thereof and such right shall not be deemed to have been waived by any act (except by a written instrument pursuant to Section 14.02(b) or knowledge of any Guarantied Party, or its respective agents, officers or employees. No waiver of any Event of Default by any Guarantied Party shall operate as a waiver of any other Event of Default or the same Event of Default on a future occasion, and no action by any Guarantied Party permitted hereunder shall in any way affect or impair any Guarantied Party’s rights and remedies or the obligations of any Guarantor under this Guarantee. Any determination by a court of competent jurisdiction of the amount of any principal or interest owing by the Borrower to a Guarantied Party shall be conclusive and binding on each Guarantor irrespective of whether such Guarantor was a party to the suit or action in which such determination was made.

(b) None of the terms or provisions of this Guarantee may be waived, amended, supplemented or modified except pursuant to an agreement in writing entered into by the Guarantors and the Required Lenders or by the Guarantors and the Administrative Agent with the consent of the Required Lenders.

SECTION 14.03. Governing Law; Jurisdiction; Consent to Service of Process .

(a) This Guarantee shall be construed in accordance with and governed by the law of the State of New York.

(b) Each Guarantor hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guarantee, or for recognition or enforcement of any judgment, and each of the

 

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parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Guarantee shall affect any right that the Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Guarantee against any Guarantor or its properties in the courts of any jurisdiction.

(c) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guarantee in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d) Each party to this Guarantee irrevocably consents to service of process in the manner provided for notices in Section 9.01 (Notices) of the Credit Agreement. Nothing in this Guarantee will affect the right of any party to this Guarantee to serve process in any other manner permitted by law.

SECTION 14.04. Certain Terms . The following rules of interpretation shall apply to this Guarantee: (a) the terms “herein, “ “hereof, “ “hereto” and “hereunder” and similar terms refer to this Guarantee as a whole and not to any particular Article, Section, subsection or clause in this Guarantee, (b) unless otherwise indicated, references herein to an Exhibit, Article, Section, subsection or clause refer to the appropriate Exhibit to, or Article, Section, subsection or clause in this Guarantee and (c) the term “including” means “including without limitation” except when used in the computation of time periods.

SECTION 14.05. Waiver of Jury Trial . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

SECTION 14.06. Notices . Any notice or other communication herein required or permitted shall be given as provided in Section 9.01 (Notices) of the Credit Agreement and, in the case of any Guarantor, to such Guarantor in care of the Borrower.

SECTION 14.07. Severability . Wherever possible, each provision of this Guarantee shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guarantee shall be prohibited by or invalid under such law, such

 

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provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Guarantee.

SECTION 14.08. Additional Guarantors . Each of the Guarantors agrees that, if, pursuant to Section 9.09 (Subsidiary Guarantees) of the Credit Agreement, the Borrower desires any Subsidiary to become a Guarantor hereunder, such Subsidiary shall execute and deliver to the Administrative Agent a Guarantee Supplement in substantially the form of Exhibit A (Guarantee Supplement) attached hereto and shall thereafter become a Guarantor for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the rights, benefits and obligations of this Guarantee.

SECTION 14.09. Costs and Expenses . Each Guarantor agrees to pay or reimburse the Administrative Agent and each of the other Guarantied Parties upon demand for all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by the Administrative Agent and such other Guarantied Parties in enforcing this Guarantee against such Guarantor or exercising or enforcing any other right or remedy available in connection herewith or therewith.

SECTION 14.10. Waiver of Consequential Damages . TO THE EXTENT PERMITTED BY APPLICABLE LAW AND WITHOUT LIMITING IN ANY WAY THE GUARANTORS’ OBLIGATIONS HEREUNDER, NO PARTY HERETO NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS SHALL ASSERT, AND EACH PARTY HERETO HEREBY WAIVES, ANY CLAIM AGAINST EACH OTHER SUCH PERSON, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS GUARANTEE OR ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE TRANSACTIONS, ANY LOAN OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREOF.

SECTION 14.11. Entire Agreement . This Guarantee, taken together with all of the other Loan Documents executed and delivered by the Guarantors, represents the entire agreement and understanding of the parties hereto and supersedes all prior understandings, written and oral, relating to the subject matter hereof.

SECTION 14.12. Counterparts . This Guarantee may be executed in any number of separate counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed counterpart by facsimile transmission or electronic mail shall be effective as delivery of a manually executed counterpart.

ARTICLE XV

Termination

In addition to termination upon the payment in full of all of the Obligations (other than indemnities and other contingent obligations not then due and payable and as to which no claim has been made as of the time of determination) and the termination of the Commitments,

 

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so long as no Default has occurred and is continuing under the Loan Documents (or would result from such release), (a) if all of the capital stock of a Guarantor that is owned by the Borrower or a Subsidiary is sold or otherwise disposed of in a transaction or transactions permitted by the Credit Agreement or (b) in the event that, immediately after giving effect to the release of any Guarantor hereunder, all of the Indebtedness of the Non-Guarantor Subsidiaries is permitted under Section 6.01 of the Credit Agreement, then, in each case, promptly following the Borrower’s request, the Administrative Agent shall execute a release of such Guarantor from this Guarantee.

[S IGNATURE P AGES F OLLOW ]

 

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IN WITNESS WHEREOF, this Guarantee has been duly executed by the Guarantors as of the day and year first set forth above.

 

[NAME OF GUARANTOR]
By:  

 

  Name:
  Title:

[SIGNATURE PAGE TO GUARANTEE]


ACKNOWLEDGED AND AGREED

as of the date first above written:

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent

By:  

 

Name:  
Title:  

[SIGNATURE PAGE TO GUARANTEE]


EXHIBIT A TO

SUBSIDIARY GUARANTEE

GUARANTEE SUPPLEMENT

The undersigned hereby agrees to be bound as a Guarantor for purposes of the Guarantee, dated as of [                   ,          ] (the “ Guarantee ”), among certain Subsidiaries of Marathon Petroleum Company listed on the signature pages thereof and acknowledged by JPMorgan Chase Bank, National Association, as Administrative Agent, and the undersigned hereby acknowledges receipt of a copy of the Guarantee. The undersigned hereby represents and warrants that each of the representations and warranties contained in Article XIII (Representations and Warranties; Covenants) of the Guarantee applicable to it is true and correct on and as the date hereof as if made on and as of such date. Capitalized terms used herein but not defined herein are used with the meanings given them in the Guarantee.

IN WITNESS WHEREOF, the undersigned has caused this Guarantee Supplement to be duly executed and delivered as of                   ,          .

 

[NAME OF GUARANTOR]
By:  

 

  Name:
  Title:

 

ACKNOWLEDGED AND AGREED

as of the date first above written:

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent

By:  

 

Name:  
Title:  

[SIGNATURE PAGE TO GUARANTEE SUPPLEMENT]

Table of Contents

Information contained herein is subject to completion or amendment. A registration statement on Form 10 relating to these securities has been filed with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended.

 

EXHIBIT 99.1

Subject to Completion, dated March 29, 2011

INFORMATION STATEMENT

Marathon Petroleum Corporation

Common Stock

(par value $0.01 per share)

 

 

Marathon Oil Corporation is furnishing this information statement to its stockholders in connection with the distribution by Marathon Oil of all the outstanding shares of common stock of Marathon Petroleum Corporation, or MPC, to holders of Marathon Oil’s common stock. As of the date of this information statement, Marathon Oil owns all of MPC’s outstanding common stock.

On [                    ] , 2011, after consultation with financial and other advisors, Marathon Oil’s board of directors approved the distribution of 100% of Marathon Oil’s interest in MPC to holders of Marathon Oil common stock. Holders of Marathon Oil common stock will be entitled to receive one share of MPC common stock for every two shares of Marathon Oil common stock held as of 5:00 p.m. New York City Time on the record date, [                    ] , 2011. The distribution date for the spin-off will be [                    ] , 2011.

You will not be required to pay any cash or other consideration for the shares of MPC common stock that will be distributed to you or to surrender or exchange your shares of Marathon Oil common stock to receive shares of MPC common stock in the spin-off. The distribution will not affect the number of shares of Marathon Oil common stock that you hold. No approval by Marathon Oil stockholders of the spin-off is required or being sought. You are not being asked for a proxy and you are requested not to send a proxy.

As discussed under “The Spin-Off—Trading of Marathon Oil Common Stock After the Record Date and Prior to the Distribution,” if you sell your shares of Marathon Oil common stock in the “regular way” market after the record date and prior to the spin-off, you also will be selling your right to receive MPC common stock in connection with the spin-off. You are encouraged to consult with your financial advisor regarding the specific implications of selling your Marathon Oil common stock on or prior to the distribution date.

There is no current trading market for our common stock. However, we expect that a limited market, commonly known as a “when-issued” trading market, for MPC common stock will begin on or about [                    ] , 2011, and we expect that “regular way” trading of MPC common stock will begin the first day of trading following the spin-off. Subject to the consummation of the spin-off, we have applied to list our common stock on the New York Stock Exchange under the symbol “MPC.”

In reviewing this information statement, you should carefully consider the matters described under the caption “ Risk Factors ” beginning on page 17.

 

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved these securities or determined if this information statement is truthful or complete. Any representation to the contrary is a criminal offense.

 

 

This information statement does not constitute an offer to sell or the solicitation of an offer to buy any securities.

Marathon Oil first mailed this information statement to its stockholders on or about [                    ] , 2011.

The date of this information statement is [                    ], 2011.


Table of Contents

TABLE OF CONTENTS

 

     Page  

QUESTIONS AND ANSWERS ABOUT THE SPIN-OFF

     1   

SUMMARY

     6   

RISK FACTORS

     17   

CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS

     34   

THE SPIN-OFF

     36   

CAPITALIZATION

     49   

DIVIDEND POLICY

     50   

SELECTED HISTORICAL COMBINED FINANCIAL DATA

     51   

UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL DATA

     52   

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

     57   

QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

     78   

BUSINESS

     81   

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS

     99   

RELATIONSHIP WITH MARATHON OIL AFTER THE SPIN-OFF

     100   

MANAGEMENT

     108   

EXECUTIVE COMPENSATION

     116   

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

     151   

DESCRIPTION OF CAPITAL STOCK

     153   

INDEMNIFICATION OF DIRECTORS AND OFFICERS

     159   

INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

     160   

WHERE YOU CAN FIND MORE INFORMATION

     160   

GLOSSARY OF SELECTED TERMS

     161   

INDEX TO COMBINED FINANCIAL STATEMENTS

     F-1   

Unless we otherwise state or the context otherwise indicates, all references in this information statement to “MPC,” “us,” “our” or “we” mean Marathon Petroleum Corporation and its subsidiaries, and all references to “Marathon Oil” mean Marathon Oil Corporation and its subsidiaries, other than, for all periods following the spin-off, MPC.

The transaction in which MPC will be separated from Marathon Oil and become an independent, publicly traded company is referred to in this information statement alternatively as the “distribution” or the “spin-off.”

This information statement is being furnished solely to provide information to Marathon Oil stockholders who will receive shares of MPC common stock in connection with the spin-off. It is not provided as an inducement or encouragement to buy or sell any securities. You should not assume that the information contained in this information statement is accurate as of any date other than the date set forth on the cover. Changes to the information contained in this information statement may occur after that date, and we undertake no obligation to update the information contained in this information statement, unless we are required by applicable securities laws to do so.

 

i


Table of Contents

QUESTIONS AND ANSWERS ABOUT THE SPIN-OFF

 

Q: What is the spin-off?

 

A: The spin-off involves Marathon Oil’s distribution to its stockholders of all the shares of our common stock that it owns. Following the spin-off, we will be an independent, publicly traded company from Marathon Oil, and Marathon Oil will not retain any ownership interest in our company. You do not have to pay any consideration or give up any portion of your Marathon Oil common stock to receive shares of our common stock in the spin-off.

 

Q: What is being distributed in the spin-off?

 

A: Marathon Oil will distribute one share of MPC common stock for every two shares of Marathon Oil common stock outstanding as of the record date for the spin-off.

 

Q: What is the record date for the spin-off, and when will the spin-off occur?

 

A: The record date is [                    ] , 2011, and ownership is determined as of 5:00 p.m. New York City Time on that date. Shares of MPC common stock will be distributed on [                    ] , 2011, which we refer to as the distribution date.

 

Q: As a holder of shares of Marathon Oil common stock as of the record date, what do I have to do to participate in the spin-off?

 

A: Nothing. You will receive one share of MPC common stock for every two shares of Marathon Oil common stock held as of the record date and retained through the distribution date. You may also participate in the spin-off if you purchase Marathon Oil common stock in the “regular way” market after the record date and retain your Marathon Oil shares through the distribution date. See “The Spin-Off—Trading of Marathon Oil Common Stock After the Record Date and Prior to the Distribution.”
Q: If I sell my shares of Marathon Oil common stock before or on the distribution date, will I still be entitled to receive MPC shares in the spin-off?

 

A: If you sell your shares of Marathon Oil common stock prior to or on the distribution date, you may also be selling your right to receive shares of MPC common stock. See “The Spin-Off—Trading of Marathon Oil Common Stock After the Record Date and Prior to the Distribution.” You are encouraged to consult with your financial advisor regarding the specific implications of selling your Marathon Oil common stock prior to or on the distribution date.

 

Q: How will fractional shares be treated in the spin-off?

 

A. Any fractional share of our common stock otherwise issuable to you will be sold on your behalf, and you will receive a cash payment with respect to that fractional share. For an explanation of how the cash payments for fractional shares will be determined, see “The Spin-Off—Treatment of Fractional Shares.”

 

Q: Will the spin-off affect the number of shares of Marathon Oil I currently hold?

 

A: The number of shares of Marathon Oil common stock held by a stockholder will be unchanged. The market value of each Marathon Oil share, however, will decline to reflect the impact of the spin-off.

 

Q: What are the U.S. federal income tax consequences of the distribution of our shares of common stock to U.S. stockholders?

 

A:

Marathon Oil has requested a private letter ruling from the U.S. Internal Revenue Service (the “IRS”) and expects to obtain an opinion of counsel that the distribution of MPC common stock to Marathon Oil stockholders in the spin-off will qualify as a tax-free distribution for United States federal income tax purposes. You should, of course, consult your own tax advisor as to the particular consequences of the spin-off

 

 

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to you, including the applicability and effect of any U.S. federal, state and local and foreign tax laws, which may result in the spin-off distribution being taxable to you. Marathon Oil will provide its U.S. stockholders with information to enable them to compute their tax basis in both Marathon Oil and MPC shares. This information will be posted on Marathon Oil’s website www.Marathon.com promptly following the distribution date. Certain U.S. federal income tax consequences of the spin-off are described in more detail under “The Spin-Off—Material U.S. Federal Income Tax Consequences of the Spin-Off.”

 

Q: Is the spin-off distribution tax free to non-U.S. stockholders?

 

A: Non-U.S. stockholders may be subject to U.S. federal income tax if the distribution of shares of MPC common stock in the spin-off were not to qualify as a tax-free distribution for U.S federal income tax purposes. In addition, any non-U.S. stockholder that beneficially owns more than five percent of Marathon Oil common stock may be subject to U.S. federal income tax on a portion of any gain realized with respect to its existing Marathon Oil common stock as a result of participating in the spin-off in certain circumstances if Marathon Oil was determined to be a “United States real property holding corporation” on certain dates during the shorter of the five-year period ending on the distribution date or the non-U.S. stockholder’s holding period. A non-U.S. stockholder generally will not be subject to regular U.S. federal income or withholding tax or gain realized on the receipt of cash in lieu of fractional shares in the spin-off, unless certain conditions exist. Non-U.S. stockholders may be subject to tax on the spin-off distribution in jurisdictions outside the U.S. The foregoing is for general information purposes and does not constitute tax advice. Stockholders should consult their own tax advisors regarding the particular consequences of the spin-off to them. See “The Spin-Off—Material U.S. Federal Income Tax Consequences of the Spin-Off—Material U.S. Federal Income Tax Consequences of the Spin-Off to Non-U.S. Holders” and “—Other Tax Consequences of the Spin-Off.”
Q: When will I receive my MPC shares? Will I receive a stock certificate for MPC shares distributed as a result of the spin-off?

 

A: Registered holders of Marathon Oil common stock who are entitled to participate in the spin-off will receive a book-entry account statement reflecting their ownership of MPC common stock. For additional information, registered stockholders in the United States or Canada should contact Marathon Oil’s transfer agent, Computershare Trust Company, N.A., at (888) 843-5542 or through its website at www.computershare.com . Stockholders from outside the United States, Canada and Puerto Rico may call (781) 575-4735. See “The Spin-Off—When and How You Will Receive MPC Shares.”

 

Q: What if I hold my shares through a broker, bank or other nominee?

 

A: Marathon Oil stockholders who hold their shares through a broker, bank or other nominee will have their brokerage account credited with MPC common stock. For additional information, those stockholders should contact their broker or bank directly.

 

Q: What if I have stock certificates reflecting my shares of Marathon Oil common stock? Should I send them to the transfer agent or to Marathon Oil?

 

A: No, you should not send your stock certificates to the transfer agent or to Marathon Oil. You should retain your Marathon Oil stock certificates.

 

Q: If I was enrolled in a Marathon Oil dividend reinvestment plan, will I automatically be enrolled in the MPC dividend reinvestment plan?

 

A:

Yes. If you elected to have your Marathon Oil cash dividends applied toward the purchase of additional Marathon Oil shares, the MPC shares you receive in the distribution will be automatically enrolled in the MPC Direct Stock Purchase and Dividend Reinvestment Plan sponsored by Computershare Trust Company,

 

 

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N.A. (MPC’s transfer agent and registrar), unless you notify Computershare Trust Company N.A. that you do not want to reinvest any MPC cash dividends in additional MPC shares. For contact information for Computershare Trust Company N.A., see “Description of Capital Stock—Transfer Agent and Registrar.”

 

Q: Why is Marathon Oil separating MPC from Marathon Oil’s business?

 

A: Marathon Oil’s board and management believe that our separation from Marathon Oil will provide the following benefits: enhanced flexibility of the management team of each company to make business and operational decisions that are in the best interests of its business and to allocate capital and corporate resources in a manner that focuses on achieving its own strategic priorities; facilitation of growth of Marathon Oil’s and MPC’s businesses; improved investor understanding of the separate businesses of Marathon Oil and MPC and facilitation of valuation assessments for the securities of both companies, which should appeal to the different investor bases of the upstream and downstream petroleum businesses; and enhanced ability of each company to attract employees with appropriate skill sets, to incentivize its key employees with equity-based compensation that is aligned with the performance of its own operations and to retain key employees for the long term. For more information, see “The Spin-Off—Reasons for the Spin-Off.”

 

Q: Why is the separation of the two companies structured as a spin-off?

 

A: A U.S. tax-free distribution of shares in MPC is the most tax-efficient way to separate the companies.

 

Q: What are the conditions to the spin-off?

 

A: The spin-off is subject to a number of conditions, including, among others, the receipt of a private letter ruling from the IRS, the SEC declaring effective the registration statement of which this information statement forms a part
 

and the completion of the financing related to the spin-off. See “The Spin-Off—Spin-Off Conditions and Termination.”

 

Q: Will MPC incur any debt prior to or at the time of the spin-off?

 

A: Yes. We have entered into new financing arrangements in anticipation of the distribution. See “Risk Factors—Risks Relating to the Spin-Off—Following the spin-off, we will have substantial debt obligations that could restrict our business, financial condition, results of operations or cash flows. In addition, the separation of our business from Marathon’s upstream business may lead to an increase in the overall cost of debt funding and a decrease in the overall debt capacity of the combined businesses. Also, our business, financial condition, results of operations and cash flows could be harmed by a deterioration of our credit profile or by factors adversely affecting the credit markets generally.”

 

Q: Are there risks to owning MPC common stock?

 

A: Yes. MPC’s business is subject both to general and specific business risks relating to its operations. In addition, the spin-off presents risks relating to MPC being a separately traded public company. See “Risk Factors.”

 

Q: Does MPC intend to pay cash dividends?

 

A: Yes. MPC intends to pay a cash dividend at the initial rate of $0.20 per share per quarter, or $0.80 per share per year. The declaration and amount of future dividends, however, will be determined by our board of directors and will depend on our financial condition, earnings, capital requirements, legal requirements, regulatory constraints, industry practice and any other factors that our board of directors believes are relevant. See “Dividend Policy.”

 

Q: Will MPC common stock trade on a stock market?

 

A:

Currently, there is no public market for our common stock. Subject to the consummation of the spin-off, we have applied to list our common stock on the New York Stock Exchange under

 

 

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the symbol “MPC.” We cannot predict the trading prices for our common stock when such trading begins.

 

Q: What will happen to Marathon Oil stock options, restricted shares and restricted stock units?

 

A: Equity-based compensation awards generally will be treated as follows:

 

   

Outstanding options to purchase shares of Marathon Oil common stock that are vested, whether held by a current or former officer or employee of Marathon Oil or a current or former officer or employee of MPC, will be adjusted so that the holders of the options will hold options to purchase both Marathon Oil and MPC common stock. The Marathon Oil and MPC options received by each optionee, when combined, will generally preserve the intrinsic value of each original option grant and the ratio of the exercise price to the fair market value of Marathon Oil common stock on the distribution date.

 

   

Outstanding options to purchase shares of Marathon Oil common stock that are not vested and that are held by current officers or employees of Marathon Oil who are not and will not become officers or employees of MPC immediately after the spin-off will be replaced with adjusted options to purchase Marathon Oil common stock. Those adjusted options will generally preserve the intrinsic value of each original option grant and the ratio of the exercise price to the fair market value of Marathon Oil common stock on the distribution date. There are no unvested options to purchase shares of Marathon Oil common stock held by former officers or former employees.

 

   

Outstanding options to purchase shares of Marathon Oil common stock that are not vested and that are held by individuals who are or will become officers or employees of MPC immediately after the spin-off will be replaced with substitute options to purchase MPC common stock. Those substitute options will generally preserve the intrinsic value of each original option grant. They

   

will also generally preserve the ratio of the exercise price to the fair market value of Marathon Oil common stock on the distribution date.

 

   

Outstanding vested Marathon Oil stock appreciation rights will be replaced with both adjusted Marathon Oil stock appreciation rights and MPC stock appreciation rights to receive a payment in cash or common stock. Both stock appreciation rights, when combined, will generally preserve the aggregate intrinsic value of each original stock appreciation right grant. They will also generally preserve the ratio of exercise price to the fair market value of Marathon Oil common stock on the distribution date. There are no outstanding stock appreciation rights issued by Marathon Oil that have not yet vested.

 

   

The Marathon Oil restricted stock awards and restricted stock unit awards of officers or employees of Marathon Oil who are not and will not become officers or employees of MPC immediately after the spin-off will be replaced with adjusted Marathon Oil restricted stock awards or restricted stock unit awards, as applicable, each of which will generally preserve the value of the original award determined as of the distribution date.

 

   

The Marathon Oil restricted stock awards and restricted stock unit awards of persons who are or will become officers or employees of MPC immediately after the spin-off will be converted into substitute MPC restricted stock awards or restricted stock unit awards, as applicable, each of which will generally preserve the value of the original award determined as of the distribution date.

 

   

The Marathon Oil director restricted stock unit awards of all nonemployee directors who are not and will not become directors of MPC immediately after the spin-off will be replaced with adjusted Marathon Oil director restricted stock unit awards, each of which will generally preserve the value of the original awards determined as of the distribution date.

 

 

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The Marathon Oil director restricted stock unit awards of all nonemployee directors who are or will become directors of MPC immediately after the spin-off will be replaced with substitute MPC director restricted stock unit awards, each of which will generally preserve the value of the original awards determined as of the distribution date.

 

   

Performance units having a three-year performance period have been granted to Marathon Oil officers. At the effective time of the spin-off, three performance unit grants are expected to be outstanding: the 2009 grant for the 2009-2011 performance period, the 2010 grant for the 2010-2012 performance period, and the 2011 grant for the 2011-2013 performance period. The value of the performance units will be calculated as if the relevant performance period had ended on the distribution date, and each holder of performance units will receive a prorated payment based upon the portion of the performance period actually completed.

For additional information on the treatment of Marathon Oil equity-based compensation awards, see “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Employee Matters Agreement.”

 

Q: What will the relationship between Marathon Oil and MPC be following the spin-off?

 

A: After the spin-off, Marathon Oil will not own any shares of MPC common stock, and each of Marathon Oil and MPC will be independent, publicly traded companies with their own management teams and boards of directors. However, in connection with the spin-off, we are entering into a number of agreements with Marathon Oil that will govern the spin-off and allocate responsibilities for obligations arising before and after the spin-off, including, among
 

others, obligations relating to our employees and taxes. See “Relationship with Marathon Oil After the Spin-Off.”

 

Q: Will I have appraisal rights in connection with the spin-off?

 

A: No. Holders of Marathon Oil common stock are not entitled to appraisal rights in connection with the spin-off.

 

Q: Who is the transfer agent for your common stock?

 

A: Computershare Trust Company, N.A.
     250 Royall Street
     Canton, Massachusetts 02021-1011

 

Q: Who is the distribution agent for the spin-off?

 

A: Computershare Trust Company, N.A.
     250 Royall Street
     Canton, Massachusetts 02021-1011

 

Q: Whom can I contact for more information?

 

A: If you have questions relating to the mechanics of the distribution of Marathon Oil shares, you should contact the distribution agent:

Computershare Trust Company, N.A. 250 Royall Street

Canton, Massachusetts 02021-1011

Telephone: (888) 843-5542 or (781) 575-4735

(outside the United States, Canada and Puerto Rico)

Before the spin-off, if you have questions relating to the spin-off, you should contact Marathon Oil at:

Marathon Oil Corporation

5555 San Felipe

Houston, Texas 77056

Attention: Vice President, Investor Relations

                  and Public Affairs

Telephone: (713) 296-4140

 

 

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SUMMARY

The following is a summary of some of the information contained in this information statement. It does not contain all the details concerning us or the spin-off, including information that may be important to you. We urge you to read this entire document carefully, including the risk factors, our pro forma financial information and our historical combined financial statements and the notes to those financial statements.

Except as otherwise indicated or unless the context otherwise requires, the information included in this information statement assumes the completion of the separation of MPC from Marathon Oil and the related distribution of our common stock.

Marathon Petroleum Corporation

We are currently a wholly owned subsidiary of Marathon Oil. Following the spin-off, we will be an independent, publicly traded company. Marathon Oil will not retain any ownership interest in our company. Our assets and business consist of those that Marathon Oil attributes to its existing petroleum refining, marketing and transportation operations and that are reported as its refining, marketing and transportation segment in its financial statements. We refer to petroleum refining, marketing and transportation operations as “downstream petroleum” operations or “downstream” operations.

We are one of the largest petroleum product refiners, transporters and marketers in the United States. We currently own and operate six refineries, all located in the United States, with an aggregate crude oil refining capacity in excess of 1.1 million barrels per day. Our refineries supply refined products to resellers and consumers within our market areas, including the Midwest, Gulf Coast and Southeast regions of the United States. We distribute refined products to our customers through one of the largest private domestic fleets of inland petroleum product barges, one of the largest terminal operations in the United States, and a combination of MPC-owned and third-party-owned trucking and rail assets. We currently own, operate, lease or have ownership interests in approximately 9,600 miles of crude and refined product pipelines to deliver crude oil to our refineries and other locations and refined products to wholesale and retail market areas, making us one of the largest petroleum pipeline companies in the United States on the basis of total volumes delivered. We sell refined products to wholesale marketing customers, large consumers such as utilities and on the spot market. We sell light products at 63 owned and operated and approximately 45 other exchange/throughput terminals throughout our 18-state wholesale market area. We supply refined products to approximately 5,100 Marathon ® -branded retail outlets located within our market areas, which are operated by independent dealers and jobbers. In addition, we currently sell refined products directly to consumers through approximately 1,350 Speedway ® -branded stores, which one of our subsidiaries owns and operates.

For the year ended December 31, 2010, we generated revenues of approximately $62.5 billion and income from operations of approximately $1.01 billion. For the year ended December 31, 2009, we generated revenues of approximately $45.5 billion and income from operations of approximately $654 million.

Our operations consist of three business segments:

 

   

Refining and Marketing—refines crude oil and other feedstocks at our six refineries in the Gulf Coast and Midwest regions of the United States and distributes refined products through various means, including barges, terminals and trucks that we own or operate. We sell refined products to wholesale marketing customers domestically and internationally, to buyers on the spot market, to our Speedway business segment and to dealers and jobbers who operate Marathon ® -branded retail outlets;

 

   

Speedway—sells transportation fuels and convenience products in the retail market, primarily in the Midwest, through Speedway ® -branded convenience stores; and

 

 

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Pipeline Transportation—transports crude oil and other feedstocks to our refineries and other locations, delivers refined products to wholesale and retail market areas and owns, among other transportation-related assets, a majority interest in LOOP LLC, which is the owner and operator of the only U.S. deepwater oil port.

On December 1, 2010, we completed the sale of most of our Minnesota assets. These assets included the 74,000 barrel-per-day St. Paul Park refinery and associated terminals, 166 SuperAmerica ® -branded convenience stores (including six stores in Wisconsin) along with the SuperMom’s ® bakery (a baked goods supply operation) and certain associated trademarks, SuperAmerica Franchising LLC, interests in pipeline assets in Minnesota and associated inventories. We refer to these assets as the “Northern-Tier Assets.” This transaction was approximately $935 million, which included approximately $330 million for inventories. We received $740 million in cash, net of closing costs but prior to post-closing adjustments. The terms of the sale included (1) a preferred stock interest in the entity that holds the Northern-Tier Assets with a stated value of $80 million, (2) a maximum $125 million earnout provision payable to us over eight years, (3) a maximum $60 million of margin support payable to the buyer over two years, up to a maximum of $30 million per year, (4) a receivable from the buyer of $107 million payable in the first quarter of 2011 and (5) guarantees with a maximum exposure of $11 million made by us on behalf of and to the buyer related to a limited number of convenience store sites. As a result of this continuing involvement, the related gain on sale of $89 million was deferred. The timing and amount of deferred gain ultimately recognized in the income statement is subject to the resolution of our continuing involvement.

In connection with the spin-off, we and Marathon Oil are entering into certain agreements, including a separation and distribution agreement, a tax sharing agreement and an employee matters agreement, under which we and Marathon Oil will, among other things, indemnify each other against certain liabilities arising from our respective businesses. See “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us.”

We describe in this information statement the business to be transferred to us by Marathon Oil in connection with the spin-off as if it were our business for all historical periods described. However, we are a newly formed entity that will not independently conduct any operations before the spin-off. References in this document to our historical assets, liabilities, products, business or activities generally refer to the historical assets, liabilities, products, business or activities of the transferred business as it was conducted as part of Marathon Oil and its subsidiaries before the spin-off. Our historical financial results as part of Marathon Oil contained in this information statement may not be indicative of our financial results in the future as an independent company or reflect what our financial results would have been had we been an independent company during the periods presented.

Our company was incorporated in Delaware on November 9, 2009. The address of our principal executive offices is 539 South Main Street, Findlay, Ohio 45840-3229. Our main telephone number at that address is (419) 422-2121.

Our Competitive Strengths

High Quality Asset Base

We believe we are the largest crude oil refiner in the Midwest and the fifth largest in the United States, based on crude oil refining capacity. We currently own a six-plant refinery network with over 1.1 million barrels per day of crude oil throughput capacity. Our refineries process a wide range of crude oils, including heavy and sour crude oils, which can be purchased at a discount to sweet crude, and produce transportation fuels such as gasoline and distillate, as well as other refined products.

 

 

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Strategic Location

The geographic locations of our refineries and our extensive midstream distribution system provide us with significant strategic advantages. Located in Petroleum Administration for Defense District (“PADD”) II and PADD III, which consist of states in the Midwest and the Gulf Coast regions of the United States, our refineries have the ability to procure crude oil from a variety of supply sources, including domestic, Canadian and other foreign sources, which provides us with flexibility to optimize supply costs. For example, geographic proximity to Canadian crude oil supply sources allows our refineries to incur lower transportation costs than competitors transporting Canadian crude oil to the Gulf Coast for refining. Our refinery locations and midstream distribution system also allow us to serve a broad range of key end-user markets across the United States quickly and cost-effectively.

Attractive Growth Opportunities Through Internal Projects

We believe that we have attractive growth opportunities through internal capital projects. We recently completed a major expansion project at our Garyville, Louisiana refinery, which initially expanded the crude oil refining capacity of this refinery by 180 thousand barrels per day (“mbpd”) to 436 mbpd. The Garyville expansion project has enhanced our scale efficiency and our feedstock flexibility. We are also continuing work on a currently projected $2.2 billion heavy oil upgrading and expansion project at our Detroit, Michigan refinery. When completed in the second half of 2012, the project will enable the refinery to process additional heavy, sour crude oils, including Canadian bitumen blends, and will increase the refinery’s crude oil refining capacity by approximately 15 mbpd. The estimated project costs referenced in this paragraph exclude amounts for capitalized interest.

Extensive Midstream Distribution Networks

We believe the relative scale of our transportation and distribution assets and operations distinguishes us from other refining and marketing companies. We own one of the largest petroleum pipeline companies in the United States based on total volume delivered. We also own one of the largest private domestic fleets of inland petroleum product barges and one of the largest terminal operations in the United States, as well as trucking and rail assets. We operate this system in coordination with our refining network, which enables us to achieve synergies by transferring intermediate stocks between refineries, optimizing feedstock and raw material supplies and optimizing refined product distribution. This in turn results in economy-of-scale advantages that contribute to profitability.

Competitively Positioned Marketing Operations

We are one of the largest wholesale suppliers of gasoline and distillate to resellers within each of our market areas. We have two strong retail brands: Speedway ® and Marathon ® . We believe our Speedway ® stores, which we operate through a wholly owned subsidiary (“Speedway”), comprise one of the largest chains of company-owned and operated retail gasoline and convenience stores in the Midwest and the fourth largest in the United States. The Marathon ® brand is an established motor fuel brand in the Midwest and Southeast regions of the United States, and is available through approximately 5,100 branded locations in 18 states. We believe our distribution system allows us to maximize the sale value of our products and minimize cost.

Established Track Record of Profitability

We have demonstrated an ability to achieve competitive financial results throughout all stages of the recent downstream business cycle. Our historical net income in 2010, 2009 and 2008 was $623 million, $449 million and $1,215 million, respectively. We believe our business mix and business strategies position us well to continue to achieve competitive financial results.

 

 

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Our Business Strategies

Pursue Growth by Expanding and Upgrading Existing Asset Base

We continually evaluate opportunities to expand our existing asset base and consider capital projects that enhance our core competitiveness in the downstream business. Our recently completed Garyville expansion project initially increased that refinery’s crude oil refining capacity by approximately 180 mbpd. Our current initiatives include an upgrade project at our Detroit, Michigan refinery, which will enhance our ability to process lower-cost heavier and sourer crude oils, as well as increase the refinery’s crude oil refining capacity by approximately 15 mbpd. We will continue to pursue other growth opportunities that provide an attractive return on capital.

Increase Profitability Through Margin Improvement

We intend to increase the profitability of our existing assets by pursuing a number of margin improvement opportunities, including increasing our feedstock flexibility and increasing our production of more high-value end products. We intend to increase our feedstock flexibility by completing our expansion and upgrade project at Detroit. By refining heavier crude oil, we will be able to reduce our overall feedstock costs without sacrificing the value of our refined products.

Selectively Pursue Acquisitions

Our management team has demonstrated its ability to identify complementary assets, consummate acquisitions on favorable terms and integrate acquired assets. Our management’s acquisition experience includes substantial involvement in the combination of the refining, marketing and transportation assets of Ashland, Inc. (“Ashland”) with those of Marathon Oil into a jointly owned business in 1998 and Marathon Oil’s subsequent acquisition of Ashland’s interest in 2005. We will continue to evaluate potential acquisitions, with the aim of increasing earnings while maintaining financial discipline. We may also pursue the strategic divestiture of assets from time to time, when doing so is in our best long-term interest. An example is the recent sale of our Northern-Tier Assets, as described in “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” We believe that our separation from Marathon Oil will enhance our ability to execute this strategy by allowing us to focus on assets that are best suited to our downstream business.

Risk Factors

Our business is subject to a number of risks, including risks related to the spin-off. The following list of risk factors is not exhaustive. Please read “Risk Factors” carefully for a more thorough description of these and other risks.

Risks Related to the Spin-Off

 

   

We may not realize the potential benefits from the spin-off.

 

   

Our historical combined and pro forma financial information are not necessarily indicative of our future financial condition, future results of operations or future cash flows, nor do they reflect what our financial condition, results of operations or cash flows would have been as an independent public company during the periods presented.

 

   

We have no history operating as an independent public company. We will incur significant costs to create the corporate infrastructure necessary to operate as an independent public company, and we will experience increased ongoing costs in connection with being an independent public company.

 

 

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If the spin-off does not qualify as a tax-free transaction, you and Marathon Oil could be subject to material amounts of taxes and, in certain circumstances, our company could be required to indemnify Marathon Oil for material taxes pursuant to indemnification obligations under the tax sharing agreement.

 

   

We may not be able to engage in desirable strategic or capital raising transactions following the spin-off. In addition, under some circumstances, we could be liable for any adverse tax consequences resulting from engaging in significant strategic or capital-raising transactions.

 

   

Potential indemnification liabilities to Marathon Oil pursuant to the separation and distribution agreement could materially and adversely affect our business, financial condition, results of operations and cash flows.

 

   

Following the spin-off, we will have substantial debt obligations that could restrict our business, financial condition, results of operations or cash flows. In addition, our business, financial condition, results of operations and cash flows could be harmed by a deterioration of our credit profile or by factors adversely affecting the credit markets generally.

Risks Related to Our Industry and Our Business

 

   

A substantial or extended decline in refining and marketing gross margins would reduce our operating results and cash flows and could materially adversely impact our future rate of growth and the carrying value of our assets.

 

   

Changes in environmental or other laws or regulations may reduce our refining and marketing gross margins.

 

   

Worldwide political and economic developments could materially and adversely impact our business, financial condition, results of operations and cash flows.

Risks Relating to Ownership of Our Common Stock

 

   

Because there has not been any public market for our common stock, the market price and trading volume of our common stock may be volatile and you may not be able to resell your shares at or above the initial market price of our common stock following the spin-off.

 

   

Provisions in our corporate documents and Delaware law could delay or prevent a change in control of our company, even if that change may be considered beneficial by some of our stockholders.

Summary of the Spin-Off

The following is a brief summary of the terms of the spin-off. Please see “The Spin-Off” for a more detailed description of the matters described below.

 

Distributing company

   Marathon Oil, which is the parent company of MPC. After the distribution, Marathon Oil will not retain any shares of our common stock.

Distributed company

   MPC, which is currently a wholly owned subsidiary of Marathon Oil. After the distribution, MPC will be an independent, publicly traded company.

Shares to be distributed

   Approximately 355 million shares of our common stock. The shares of our common stock to be distributed will constitute all of the outstanding shares of our common stock immediately after the spin-off.

 

 

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Distribution ratio

   Each holder of Marathon Oil common stock will receive one share of our common stock for every two shares of Marathon Oil common stock held on the record date.

Fractional shares

   The transfer agent identified below will aggregate fractional shares into whole shares and sell them on behalf of stockholders in the open market at prevailing market prices and distribute the proceeds pro rata to each Marathon Oil stockholder who otherwise would have been entitled to receive a fractional share in the spin-off. You will not be entitled to any interest on the amount of payment made to you in lieu of a fractional share. See “The Spin-Off—Treatment of Fractional Shares.”

Distribution procedures

   On or about the distribution date, the distribution agent identified below will distribute the shares of our common stock to be distributed by crediting those shares to book-entry accounts established by the transfer agent for persons who were stockholders of Marathon Oil as of 5:00 p.m., New York City time, on the record date. You will not be required to make any payment or surrender or exchange your Marathon Oil common stock or take any other action to receive your shares of our common stock. However, as discussed below, if you sell shares of Marathon Oil common stock in the “regular way” market between the record date and the distribution date, you will be selling your right to receive the associated shares of our common stock in the distribution. Registered stockholders will receive additional information from the transfer agent shortly after the distribution date. Beneficial stockholders will receive information from their brokerage firms.

Distribution agent, transfer agent and registrar for our shares of common stock

   Expected to be Computershare Trust Company, N.A.

Record date

   5:00 p.m. New York City Time on [                    ], 2011.

Distribution date

   [                    ], 2011.

Trading prior to or on the distribution date

   It is anticipated that, beginning shortly before the record date, Marathon Oil’s shares will trade in two markets on the New York Stock Exchange, a “regular way” market and an “ex-distribution” market. Investors will be able to purchase Marathon Oil shares without the right to receive shares of our common stock in the ex-distribution market for Marathon Oil common stock. Any holder of Marathon Oil common stock who sells Marathon Oil shares in the “regular way” market on or before the distribution date will also be selling the right to receive shares of our common stock in the spin-off. You are encouraged to consult with your financial advisor regarding the specific implications of selling Marathon Oil common stock prior to or on the distribution date.

 

 

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Assets and liabilities transferred to the distributed company

  

Before the distribution date, we and Marathon Oil will enter into a separation and distribution agreement that will contain the key provisions relating to the separation of our business

from Marathon Oil and the distribution of our shares of common stock. The separation and distribution agreement will identify the assets to be transferred, liabilities to be assumed and contracts to be assigned to us by Marathon Oil in the spin-off and describe when and how these transfers, assumptions and assignments will occur. See “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Separation and Distribution Agreement.”

Cash payments to Marathon Oil prior to the spin-off

   Prior to completion of the spin-off, we intend to repay our intercompany debt owing to Marathon Oil, which was $3.62 billion in aggregate principal amount as of December 31, 2010. We will also distribute all of our remaining cash and cash equivalents to Marathon Oil, except for a minimum cash and cash equivalents balance of $750 million as of the distribution date.

Relationship with Marathon Oil after the spin-off

   Before the distribution date, we and Marathon Oil will also enter into agreements to define various continuing relationships between Marathon Oil and us in various contexts. We will enter into a transition services agreement under which we and Marathon Oil will provide each other certain transition services on an interim basis. We and Marathon Oil will also enter into an agreement providing for the sharing of taxes incurred before and after the distribution, various indemnification rights with respect to tax matters and restrictions to preserve the tax-free status of the distribution to Marathon Oil. See “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us.”

Indemnities

   We will indemnify Marathon Oil under the tax sharing agreement we have entered into in connection with the spin-off for the taxes resulting from any acquisition or issuance of our stock that triggers the application of Section 355(e) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). For a discussion of Section 355(e), please see “The Spin-Off—Material U.S. Federal Income Tax Consequences of the Spin-Off.” Under the separation and distribution agreement entered into in connection with the spin-off, we will also indemnify Marathon Oil and its remaining subsidiaries against various claims and liabilities relating to the past operation of our business. Please see “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Separation and Distribution Agreement.”

 

 

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U.S. federal income tax consequences

  

Marathon Oil has requested a private letter ruling from the IRS and expects to obtain an opinion of counsel that the distribution of shares of MPC common stock in the spin-off

will qualify as a tax-free distribution for United States federal income tax purposes. Certain United States federal income tax consequences of the spin-off are described in more detail under “The Spin-Off—Material U.S. Federal Income Tax Consequences of the Spin-Off.”

Conditions to the spin-off

   We expect that the spin-off will be effective on [                      ] , 2011, provided that the conditions set forth under the caption “The Spin-Off—Spin-Off Conditions and Termination” have been satisfied in Marathon Oil’s sole and absolute discretion.

Reasons for the spin-off

   Marathon Oil’s board and management believe that our separation from Marathon Oil will provide the following benefits: enhanced flexibility of the management team of each company to make business and operational decisions that are in the best interests of its business and to allocate capital and corporate resources in a manner that focuses on achieving its own strategic priorities; facilitation of growth of Marathon Oil’s and MPC’s businesses; improved investor understanding of the separate businesses of Marathon Oil and MPC and facilitation of valuation assessments for the securities of both companies, which should appeal to the different investor bases of the upstream and downstream businesses; and enhanced ability of each company to attract employees with appropriate skill sets, to incentivize its key employees with equity-based compensation that is aligned with the performance of its own operations and to retain key employees for the long term. For more information, see “The Spin-Off—Reasons for the Spin-Off.”

Stock exchange listing

   Currently there is no public market for our common stock. We have applied for listing of our common stock on the New York Stock Exchange, or the NYSE, under the symbol “MPC.” We anticipate that trading will commence on a when-issued basis shortly before the record date. When-issued trading refers to a transaction made conditionally because the security has been authorized but not yet issued. On the first trading day following the distribution of our shares of common stock in the spin-off, when-issued trading in respect of our common stock will end and regular way trading will begin. Regular way trading refers to trading after a security has been issued and typically involves a transaction that settles on the third full business day following the date of the transaction. We cannot predict the trading prices for our common stock following the spin-off. In addition, Marathon Oil common stock will remain outstanding and will continue to trade on the NYSE.

 

 

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Dividend policy

  

We plan to pay a dividend at the initial rate of $0.20 per share per quarter. All decisions regarding the declaration and payment of dividends will be at the discretion of our board

of directors and will be evaluated from time to time in light of our financial condition, earnings, capital requirements, legal requirements, regulatory constraints, industry practice and any other factors that our board of directors believes are relevant. See “Dividend Policy.”

Incurrence of debt

   In anticipation of the spin-off, we have entered into a credit facility with certain financial institutions. The credit facility will provide, effective as of the distribution date, a revolving credit arrangement to satisfy our anticipated working capital requirements and other financing needs. We anticipate that immediately following the distribution date, we will have combined cash and equivalents and available liquidity under the credit facility totaling at least $2.75 billion initially, with a right to increase the amount available to at least $3.25 billion under certain conditions. The terms of the credit facility include customary covenants that, among other things, require us to satisfy certain financial tests, maintain certain financial ratios and restrict our ability to incur additional indebtedness. To the extent permitted, we may also incur additional indebtedness from time to time for general corporate purposes, including working capital requirements, capital expenditures and future acquisitions. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources.” See also “Risk Factors—Risks Relating to the Spin-Off—Following the spin-off, we will have substantial debt obligations that could restrict our business, financial condition, the separation of our business from Marathon’s upstream business may lead to an increase in the overall cost of debt funding and a decrease in the overall debt capacity of the combined businesses. Also, results of operations or cash flows. In addition, our business, financial condition, results of operations and cash flows could be harmed by a deterioration of our credit profile or by factors adversely affecting the credit markets generally.”

 

 

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SUMMARY HISTORICAL AND PRO FORMA CONDENSED COMBINED

FINANCIAL INFORMATION

The following table presents our summary historical combined financial information. The historical combined financial information as of and for the years ended December 31, 2010, 2009 and 2008 is derived from our audited combined financial statements included in this information statement. The following table also presents a summary of our unaudited pro forma condensed combined financial data, which are included in this information statement and have been prepared to reflect the adjustments to our historical financial information to give effect to the following:

 

   

the planned distribution of approximately 355 million shares of our common stock to Marathon Oil stockholders;

 

   

the incurrence of $3.0 billion of indebtedness through MPC’s issuance of senior notes in February 2011 in anticipation of the spin-off;

 

   

the repayment to Marathon Oil of approximately $3.6 billion of outstanding debt;

 

   

the cash distribution of approximately $1.1 billion to Marathon Oil;

 

   

the redemption of our investments in the preferred stock of MOC Portfolio Delaware, Inc., a subsidiary of Marathon Oil (“PFD”), that we hold; and

 

   

adjustments for certain Marathon Oil liabilities which we will retain subsequent to the spin-off.

The unaudited pro forma condensed combined statement of income data have been prepared as though these transactions occurred as of January 1, 2010 and the unaudited pro forma condensed combined balance sheet data assume that these transactions occurred as of December 31, 2010. The unaudited pro forma condensed combined financial data are subject to the assumptions and adjustments set forth in the accompanying notes. The pro forma adjustments are based on available information and assumptions that our management believes are reasonable; however, such adjustments are subject to change as the costs of operating as a stand-alone company are determined. In addition, such adjustments are estimates and may not prove to be accurate.

You should read the summary historical and unaudited pro forma condensed combined financial data in conjunction with our combined financial statements and the notes to the combined financial statements. You should also read the sections entitled “Selected Historical Combined Financial Data,” “Unaudited Pro Forma Condensed Combined Financial Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” The summary historical and unaudited pro forma condensed combined financial data are qualified by reference to these sections, the combined financial statements and the notes to the combined financial statements included in this information statement.

The unaudited pro forma condensed combined financial data are for illustrative purposes only and do not reflect what our financial position and results of operations would have been had the spin-off occurred on the dates indicated and are not necessarily indicative of our future financial position and future results of operations.

The unaudited pro forma condensed combined financial data constitute forward-looking information and are subject to certain risks and uncertainties that could cause actual results to differ materially from those anticipated. See “Cautionary Statement Concerning Forward-Looking Statements” in this information statement.

 

 

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    Year Ended December 31,  

(In millions)

  2010     2010     2009     2008  
    Pro Forma     Historical  

Combined Statements of Income Data

       

Revenues

  $ 62,487      $ 62,487        45,530      $ 64,939   

Income from operations

    1,011        1,011        654        1,855   

Net income

    545        623        449        1,215   
    December 31,        

(In millions)

  2010     2010     2009        
    Pro Forma     Historical        

Combined Balance Sheet Data

     

Total assets

  $ 21,523      $ 23,232      $ 21,254     

Long-term debt, including capitalized leases(1)

    3,268        279        254     

Long-term debt payable to parent company and subsidiaries(2)

    —          3,618        2,358     

 

(1) Includes amounts due within one year.
(2) Includes amounts due within one year and debt owed to Marathon Oil which is expected to be repaid prior to the spin-off.

 

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RISK FACTORS

You should carefully consider each of the following risks and all of the other information contained in this information statement. Some of these risks relate principally to our spin-off from Marathon Oil, while others relate principally to our business and the industry in which we operate or to the securities markets generally and ownership of our common stock.

Our business, financial condition, results of operations or cash flows could be materially and adversely affected by any of these risks, and, as a result, the trading price of our common stock could decline.

Risks Relating to the Spin-Off

We may not realize the potential benefits from the spin-off.

We may not realize the potential benefits that we expect from our spin-off from Marathon Oil. We have described those anticipated benefits elsewhere in this information statement. See “The Spin-Off–Reasons for the Spin-Off.” In addition, we will incur significant costs, including those described below, which may exceed our estimates, and we will incur some negative effects from our separation from Marathon Oil, including loss of access to the financial, managerial and professional resources from which we have benefited in the past.

Our historical combined and pro forma financial information are not necessarily indicative of our future financial condition, future results of operations or future cash flows nor do they reflect what our financial condition, results of operations or cash flows would have been as an independent public company during the periods presented.

The historical combined financial information we have included in this information statement does not reflect what our financial condition, results of operations or cash flows would have been as an independent public company during the periods presented and is not necessarily indicative of our future financial condition, future results of operations or future cash flows. This is primarily a result of the following factors:

 

   

our historical combined financial results reflect allocations of expenses for services historically provided by Marathon Oil, and those allocations may be significantly lower than the comparable expenses we would have incurred as an independent company;

 

   

our working capital requirements historically have been satisfied as part of Marathon Oil’s corporate-wide cash management programs, and our cost of debt and other capital may be significantly different from that reflected in our historical combined financial statements;

 

   

the historical combined financial information may not fully reflect the increased costs associated with being an independent public company, including significant changes that will occur in our cost structure, management, financing arrangements and business operations as a result of our spin-off from Marathon Oil, including all the costs related to being an independent public company; and

 

   

the historical combined financial information may not fully reflect the effects of certain liabilities that will be incurred or assumed by our company and may not fully reflect the effects of certain assets that will be transferred to, and liabilities that will be assumed by, Marathon Oil.

The pro forma adjustments are based on available information and assumptions that we believe are reasonable; however, our assumptions may prove not to be accurate. In addition, our unaudited pro forma combined financial information does not give effect to the sale of the Northern-Tier Assets and may not give effect to various ongoing additional costs that we may incur in connection with being an independent public company. Accordingly, our unaudited pro forma combined financial information does not reflect what our financial condition, results of operations or cash flows would have been as an independent public company and are not necessarily indicative of our future financial condition or future results of operations. Please refer to

 

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“Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Unaudited Pro Forma Condensed Combined Financial Data” and our historical combined financial statements and the notes to those statements included in this information statement.

We have no history operating as an independent public company. We will incur significant costs to create the corporate infrastructure necessary to operate as an independent public company, and we will experience increased ongoing costs in connection with being an independent public company.

We have historically used Marathon Oil’s corporate infrastructure to support our business functions, including information technology systems. The expenses related to establishing and maintaining this infrastructure were spread among all of the Marathon Oil businesses. Following the spin-off, we will no longer have access to Marathon Oil’s infrastructure, and we will need to establish our own. We expect to incur costs beginning in 2011 to establish the necessary infrastructure. See “Unaudited Pro Forma Condensed Combined Financial Data.”

Marathon Oil performs many important corporate functions for us, including some treasury, tax administration, accounting, financial reporting, human resources services, incentive compensation, legal and other services. We currently pay Marathon Oil for many of these services on a cost-allocation basis. Following the spin-off, Marathon Oil will continue to provide some of these services to us on a transitional basis for a period of up to one year, pursuant to a transition services agreement we will enter into with Marathon Oil. For more information regarding the transition services agreement, see “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Transition Services Agreement.” However, we cannot assure you that all these functions will be successfully executed by Marathon Oil during the transition period or that we will not have to expend significant efforts or costs materially in excess of those estimated in the transition services agreement. Any interruption in these services could have a material adverse effect on our financial condition, results of operation and cash flows. In addition, at the end of this transition period, we will need to perform these functions ourselves or hire third parties to perform these functions on our behalf. The costs associated with performing or outsourcing these functions may exceed the amounts reflected in our historical combined financial statements or that we have agreed to pay Marathon Oil during the transition period. A significant increase in the costs of performing or outsourcing these functions could materially and adversely affect our business, financial condition, results of operations and cash flows.

We will be subject to continuing contingent liabilities of Marathon Oil following the spin-off.

After the spin-off, there will be several significant areas where the liabilities of Marathon Oil may become our obligations. For example, under the Code and the related rules and regulations, each corporation that was a member of the Marathon Oil consolidated tax reporting group during any taxable period or portion of any taxable period ending on or before the effective time of the spin-off is jointly and severally liable for the federal income tax liability of the entire Marathon Oil consolidated tax reporting group for that taxable period. In connection with the spin-off, we will enter into a tax sharing agreement with Marathon Oil that will allocate the responsibility for prior period taxes of the Marathon Oil consolidated tax reporting group between us and Marathon Oil. See “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Tax Sharing Agreement.” However, if Marathon Oil is unable to pay any prior period taxes for which it is responsible, we could be required to pay the entire amount of such taxes. Other provisions of federal law establish similar liability for other matters, including laws governing tax-qualified pension plans as well as other contingent liabilities.

If the spin-off does not qualify as a tax-free transaction, you and Marathon Oil could be subject to material amounts of taxes and, in certain circumstances, our company could be required to indemnify Marathon Oil for material taxes pursuant to indemnification obligations under the tax sharing agreement.

Marathon Oil has requested a private letter ruling from the IRS to the effect that, among other things, the distribution of shares of MPC common stock in the spin-off qualifies as tax-free to Marathon Oil, us and

 

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Marathon Oil stockholders for U.S. federal income tax purposes under Sections 355 and 368(a) and related provisions of the Code. Marathon Oil’s receipt of that private letter ruling is a condition to the completion of the spin-off. If the factual assumptions or representations made in the private letter ruling request are inaccurate or incomplete in any material respect, then Marathon Oil will not be able to rely on the ruling. Furthermore, the IRS will not rule on whether a distribution such as the spin-off satisfies certain requirements necessary to obtain tax-free treatment under Section 355 of the Code. Rather, the private letter ruling will be based on representations by Marathon Oil that those requirements have been satisfied, and any inaccuracy in those representations could invalidate the ruling.

The spin-off is also conditioned on Marathon Oil’s receipt of an opinion of Bingham McCutchen LLP, special tax counsel to Marathon Oil (or other nationally recognized tax counsel), in form and substance satisfactory to Marathon Oil, that the distribution of shares of MPC common stock in the spin-off will qualify as tax-free to us, Marathon Oil and Marathon Oil stockholders for U.S. federal income tax purposes under Sections 355 and 368(a) and related provisions of the Code, and that certain internal restructuring transactions in connection with the spin-off similarly will be tax-free to us, Marathon Oil and other members of the Marathon Oil consolidated tax reporting group. The opinion will address those matters upon which the IRS will not rule and will rely on the private letter ruling as to matters covered by the private letter ruling. The opinion will rely on, among other things, the continuing validity of the private letter ruling and various assumptions and representations as to factual matters made by Marathon Oil and us which, if inaccurate or incomplete in any material respect, would jeopardize the conclusions reached by such counsel in its opinion. The opinion will not be binding on the IRS or the courts, and there can be no assurance that the IRS or the courts will not challenge the qualification of the spin-off as a transaction under Sections 355 and 368(a) of the Code or that any such challenge would not prevail.

Neither we nor Marathon Oil is aware of any facts or circumstances that would cause the assumptions or representations that will be relied on in the private letter ruling or in the opinion of counsel to be inaccurate or incomplete in any material respect. If, notwithstanding receipt of the private letter ruling and opinion of counsel, the spin-off were determined not to qualify under Section 355 of the Code, each U.S. holder of Marathon Oil common stock who receives shares of our common stock in the spin-off would generally be treated as receiving a taxable distribution of property in an amount equal to the fair market value of the shares of our common stock received. That distribution would be taxable to each such stockholder as a dividend to the extent of Marathon Oil’s current and accumulated earnings and profits. For each such stockholder, any amount that exceeded Marathon Oil’s earnings and profits would be treated first as a non-taxable return of capital to the extent of such stockholder’s tax basis in its shares of Marathon Oil stock with any remaining amount being taxed as a capital gain. Marathon Oil would be subject to tax as if it had sold its shares of common stock of our company in a taxable sale for their fair market value and would recognize taxable gain in an amount equal to the excess of the fair market value of such shares over its tax basis in such shares. See “The Spin-Off—Material U.S. Federal Income Tax Consequences of the Spin-Off.”

With respect to taxes and other liabilities that could be imposed on Marathon Oil in connection with the spin-off (and certain related transactions) as a result of a final determination that is inconsistent with the anticipated tax consequences, as set forth in the private letter ruling, under the terms of the tax sharing agreement we will enter into with Marathon Oil prior to the spin-off, we will be liable to Marathon Oil for any such taxes or liabilities attributable to actions taken by or with respect to us, any of our affiliates, or any person that, after the spin-off, is an affiliate thereof. See “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Tax Sharing Agreement.” We may be similarly liable if we breach specified representations or covenants set forth in the tax sharing agreement. If we are required to indemnify Marathon Oil for taxes incurred as a result of the spin-off (or certain related transactions) being taxable to Marathon Oil, it would have a material adverse effect on our business, financial condition, results of operations and cash flows.

 

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Potential liabilities associated with certain assumed obligations under the tax sharing agreement cannot be precisely quantified at this time.

Under the tax sharing agreement with Marathon Oil, we will be responsible generally for all taxes attributable to us or any of our subsidiaries, whether accruing before, on or after the spin-off. We have also agreed to be responsible for, and indemnify Marathon Oil with respect to, all taxes arising as a result of the spin-off (or certain internal restructuring transactions) failing to qualify as transactions under Sections 368(a) and 355 of the Code for U.S. federal income tax purposes (which could result, for example, from a merger or other transaction involving an acquisition of our stock) to the extent such tax liability arises as a result of any breach of any representation, warranty, covenant or other obligation by us or certain affiliates made in connection with the issuance of the tax opinion or the private letter ruling relating to the spin-off or in the tax sharing agreement. As described above, such tax liability would be calculated as though Marathon Oil (or its affiliate) had sold its shares of common stock of our company in a taxable sale for their fair market value, and Marathon Oil (or its affiliate) would recognize taxable gain in an amount equal to the excess of the fair market value of such shares over its tax basis in such shares. That tax liability could have a material adverse effect on our company. For a more detailed discussion, see “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Tax Sharing Agreement.”

We may not be able to engage in desirable strategic or capital raising transactions following the spin-off. In addition, under some circumstances, we could be liable for any adverse tax consequences resulting from engaging in significant strategic or capital raising transactions.

Even if the spin-off otherwise qualifies as a tax-free distribution under Section 355 of the Code, the spin-off may result in significant U.S. federal income tax liabilities to Marathon Oil under applicable provisions of the Code if 50% or more of Marathon Oil’s stock or our stock (in each case, by vote or value) is treated as having been acquired, directly or indirectly, by one or more persons as part of a plan (or series of related transactions) that includes the spin-off. Under those provisions, any acquisitions of Marathon Oil stock or our stock (or similar acquisitions), or any understanding, arrangement or substantial negotiations regarding an acquisition of Marathon Oil stock or our stock (or similar acquisitions), within two years before or after the spin-off are subject to special scrutiny. The process for determining whether an acquisition triggering those provisions has occurred is complex, inherently factual and subject to interpretation of the facts and circumstances of a particular case. If a direct or indirect acquisition of Marathon Oil stock or our stock resulted in a change in control as contemplated by those provisions, Marathon Oil (but not its stockholders) would recognize taxable gain. Under the tax sharing agreement, there are restrictions on our ability to take actions that could cause the separation to fail to qualify as a tax-free distribution, and we will be required to indemnify Marathon Oil against any such tax liabilities attributable to actions taken by or with respect to us or any of our affiliates, or any person that, after the spin-off, is an affiliate thereof. We may be similarly liable if we breach certain other representations or covenants set forth in the tax sharing agreement. See “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Tax Sharing Agreement.” As a result of the foregoing, we may be unable to engage in strategic or capital raising transactions that our stockholders might consider favorable, or to structure potential transactions in the manner most favorable to us, without adverse tax consequences, if at all.

Potential indemnification liabilities to Marathon Oil pursuant to the separation and distribution agreement could materially and adversely affect our business, financial condition, results of operations and cash flows.

In connection with the spin-off, we entered into a separation and distribution agreement with Marathon Oil that provides for, among other things, the principal corporate transactions required to effect the spin-off, certain conditions to the spin-off and provisions governing the relationship between our company and Marathon Oil with respect to and resulting from the spin-off. For a description of the separation and distribution agreement, see “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Separation and Distribution Agreement.” Among other things, the separation and distribution agreement provides for

 

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indemnification obligations designed to make us financially responsible for substantially all liabilities that may exist relating to our downstream business activities, whether incurred prior to or after the spin-off, as well as those obligations of Marathon Oil assumed by us pursuant to the separation and distribution agreement. If we are required to indemnify Marathon Oil under the circumstances set forth in the separation and distribution agreement, we may be subject to substantial liabilities.

In connection with our separation from Marathon Oil, Marathon Oil will indemnify us for certain liabilities. However, there can be no assurance that the indemnity will be sufficient to insure us against the full amount of such liabilities, or that Marathon Oil’s ability to satisfy its indemnification obligation will not be impaired in the future.

Pursuant to the separation and distribution agreement, Marathon Oil has agreed to indemnify us for certain liabilities. However, third parties could seek to hold us responsible for any of the liabilities that Marathon Oil has agreed to retain, and there can be no assurance that the indemnity from Marathon Oil will be sufficient to protect us against the full amount of such liabilities, or that Marathon Oil will be able to fully satisfy its indemnification obligations. Moreover, even if we ultimately succeed in recovering from Marathon Oil any amounts for which we are held liable, we may be temporarily required to bear these losses ourselves. If Marathon Oil is unable to satisfy its indemnification obligations, the underlying liabilities could have a material adverse effect on our business, financial condition, results of operations and cash flows.

After the spin-off, Marathon oil’s insurers may deny coverage to us for liabilities associated with occurrences prior to the spin-off. Even if we ultimately succeed in recovering from such insurance providers, we may be required to temporarily bear such loss of coverage.

Our accounting and other management systems and resources may not be adequately prepared to meet the financial reporting and other requirements to which we will be subject following the spin-off. If we are unable to achieve and maintain effective internal controls, our business, financial condition, results of operations and cash flows could be materially adversely affected.

Our financial results previously were included within the consolidated results of Marathon Oil, and we believe that our reporting and control systems were appropriate for those of subsidiaries of a public company. However, we were not directly subject to the reporting and other requirements of the Securities Exchange Act of 1934, as amended, which we refer to as the Exchange Act. As a result of the spin-off, we will be directly subject to reporting and other obligations under the Exchange Act, including the requirements of Section 404 of the Sarbanes-Oxley Act of 2002, which will require, beginning with the filing of our Annual Report on Form 10-K for the year ending December 31, 2012, annual management assessments of the effectiveness of our internal control over financial reporting and a report by our independent registered public accounting firm addressing these assessments. These reporting and other obligations will place significant demands on our management and administrative and operational resources, including accounting resources. To comply with these requirements, we anticipate that we will need to upgrade our systems, including information technology, implement additional financial and management controls, reporting systems and procedures and hire additional accounting and finance staff. We expect to incur additional annual expenses related to these steps, and those expenses may be significant. If we are unable to upgrade our financial and management controls, reporting systems, information technology and procedures in a timely and effective fashion, our ability to comply with our financial reporting requirements and other rules that apply to reporting companies under the Exchange Act could be impaired. Any failure to achieve and maintain effective internal controls could have a material adverse effect on our business, financial condition, results of operations and cash flows.

 

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Following the spin-off, we will have substantial debt obligations that could restrict our business, financial condition, results of operations or cash flows. In addition, the separation of our business from Marathon’s upstream business may lead to an increase in the overall cost of debt funding and a decrease in the overall debt capacity of the combined businesses. Also, our business, financial condition, results of operations and cash flows could be harmed by a deterioration of our credit profile or by factors adversely affecting the credit markets generally.

Following the spin-off, we will need to finance our company’s capital needs. In anticipation of the spin-off, on February 1, 2011, we completed a private placement of $3.0 billion in aggregate principal amount of senior notes. Immediately following the spin-off, we expect that our total combined indebtedness for borrowed money and capital lease obligations will be in the range of approximately $3.0 billion to $3.5 billion. We may also incur substantial additional indebtedness in the future.

Our indebtedness may impose various restrictions and covenants on us that could have material adverse consequences, including:

 

   

increasing our vulnerability to changing economic, regulatory and industry conditions;

 

   

limiting our ability to compete and our flexibility in planning for, or reacting to, changes in our business and the industry;

 

   

limiting our ability to pay dividends to our stockholders;

 

   

limiting our ability to borrow additional funds; and

 

   

requiring us to dedicate a substantial portion of our cash flow from operations to payments on our debt, thereby reducing funds available for working capital, capital expenditures, acquisitions and other purposes.

Marathon Oil’s board of directors and management do not expect that the spin-off will improve access to debt markets, particularly for us. As integration has enhanced Marathon Oil’s scale and diversity of operations, given the countercyclical nature of upstream and downstream operations, the separation of the two businesses may lead to an increase in the overall cost of debt funding and a decrease in overall debt capacity. Nonetheless, Marathon Oil’s board of directors and management concluded that the spin-off should not reduce debt financing alternatives meaningfully in a manner that would outweigh the other benefits of the spin-off.

In addition, a deterioration in our credit profile could increase our costs of borrowing money and limit our access to the capital markets and commercial credit, which could materially adversely affect our business, financial condition, results of operations and cash flows.

During the past three years, the credit markets and the financial services industry experienced a period of unprecedented turmoil and upheaval characterized by the bankruptcy, failure, collapse or sale of various financial institutions and an unprecedented level of intervention from the United States federal government. These circumstances and events led to reduced credit availability, tighter lending standards and higher interest rates on loans. While we cannot predict the future conditions of the credit markets, future turmoil in the credit markets could have a material adverse effect on our business, liquidity, financial condition and cash flows, particularly if our ability to borrow money from lenders or access the capital markets to finance our operations were to be impaired.

We may have received better terms from unaffiliated third parties than the terms we will receive in our agreements with Marathon Oil.

The agreements we will enter into with Marathon Oil in connection with the spin-off, including the separation and distribution agreement, tax sharing agreement, employee matters agreement and transition services agreement, were negotiated in the context of the spin-off while we were still a wholly owned subsidiary of Marathon Oil. Accordingly, during the period in which the terms of those agreements were negotiated, we did

 

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not have an independent board of directors or a management team that was independent of Marathon Oil. As a result, the terms of those agreements may not reflect terms that would have resulted from arm’s-length negotiations between unaffiliated third parties. The terms of the agreements we negotiated in the context of the spin-off related to, among other things, the allocation of assets, liabilities, rights and other obligations between Marathon Oil and us. Arm’s-length negotiations between Marathon Oil and an unaffiliated third party in another form of transaction, such as a buyer in a sale of a business transaction, may have resulted in more favorable terms to the unaffiliated third party. See “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us.”

Several members of our board of directors and management may have actual or potential conflicts of interest because of their ownership of shares of common stock of Marathon Oil.

Several members of our board of directors and management own common stock of Marathon Oil and/or options to purchase common stock of Marathon Oil because of their current or prior relationships with Marathon Oil, which could create, or appear to create, potential conflicts of interest when our directors and executive officers are faced with decisions that could have different implications for our company and Marathon Oil. See “Management.”

Risks Relating to Our Industry and Our Business

A substantial or extended decline in refining and marketing gross margins would reduce our operating results and cash flows and could materially adversely impact our future rate of growth and the carrying value of our assets.

Refining and marketing gross margins fluctuate widely. Our revenues, operating results, cash flows and future rate of growth are highly dependent on the margins we realize on our refined products. Our cost of producing refined products is influenced by a number of conditions, including the price of crude oil. We do not produce crude oil and must purchase all the crude oil we refine, and the price of that crude oil fluctuates due to a variety of worldwide market conditions. Generally, an increase or decrease in the price of crude oil affects our cost to produce gasoline and other refined products. However, the prices for crude oil and prices for our refined products can fluctuate in different directions based on global market conditions. In addition, the timing of the relative movement of the prices (both among different classes of refined products and among various global markets for similar refined products) as well as the overall change in refined product prices, can reduce profit margins. Historically, the markets for refined products have been volatile and may continue to be volatile in the future. Many of the factors influencing refining and marketing gross margins are beyond our control. These factors include:

 

   

worldwide and domestic supplies of and demand for crude oil and refined products;

 

   

the cost of crude oil to be manufactured into refined products;

 

   

utilization rates of refineries;

 

   

natural gas and electricity supply costs incurred by refineries;

 

   

the ability of the members of the Organization of Petroleum Exporting Countries to agree to and maintain production controls;

 

   

political instability or armed conflict in oil and natural gas producing regions;

 

   

local weather conditions;

 

   

natural disasters such as hurricanes and tornados;

 

   

the price and availability of alternative and competing forms of energy;

 

   

domestic and foreign governmental regulations and taxes; and

 

   

local, regional, national and worldwide economic conditions.

 

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Some of these factors can vary by region and may change quickly, adding to market volatility, while others may have long-term effects. The long-term effects of these and other factors on refining and marketing gross margins are uncertain.

We purchase our refinery feedstocks weeks before refining and selling the refined products. Price level changes during the period between purchasing feedstocks and selling the refined products from these feedstocks could have a significant effect on our financial results. We also purchase refined products manufactured by others for sale to our customers. Price level changes during the periods between purchasing and selling those refined products also could have a material adverse effect on our business, financial condition, results of operations and cash flows.

Lower refining and marketing gross margins may reduce the amount of refined product that we produce, which may reduce our revenues, operating income and cash flows. Significant reductions in refining and marketing gross margins could require us to reduce our capital expenditures or impair the carrying value of our assets.

The availability of crude oil and increases in crude oil prices may reduce our refining, marketing and transportation profitability and refining and marketing gross margins.

The profitability of our operations depends largely on the difference between the cost of crude oil and other feedstocks that we refine and the selling prices we obtain for refined products. A significant portion of our crude oil is purchased from various foreign national oil companies, producing companies and trading companies, including suppliers from the Middle East. These purchases are subject to political, geographic and economic risks attendant to doing business with suppliers located in that area of the world. Our overall profitability could be materially adversely affected by the availability of supply and rising crude oil and other feedstock prices that we do not recover in the marketplace. Refining and marketing gross margins historically have been volatile and vary with the level of economic activity in the various marketing areas, the regulatory climate, logistical capabilities and the available supply of refined products. Our overall profitability could be materially adversely affected by factors that affect those margins, such as rising refined product prices that we are not able to recover in the retail marketplace.

Changes in environmental or other laws or regulations may reduce our refining and marketing gross margins.

Various environmental, safety, health, security, marketing and pricing laws and regulations have imposed, and are expected to continue to impose, increasingly stringent and costly requirements on our operations, which may reduce our refining and marketing gross margins. Environmental laws and regulations, in particular, are subject to frequent change, and many of them have become and will continue to become more stringent.

We believe it is likely that the scientific and political attention to issues concerning the extent of, causes of, and responsibility for climate change will continue, with the potential for further laws and regulations that could affect our operations. Currently, various legislative and regulatory measures to address greenhouse gas emissions (including carbon dioxide, methane and nitrous oxides) are in various phases of review, discussion or implementation in the United States. These include proposed federal legislation and state actions to develop statewide or regional programs, each of which could impose reductions in greenhouse gas emissions. These actions could result in increased (1) costs to operate and maintain our facilities, (2) capital expenditures to install new emission controls on our facilities and (3) costs to administer and manage any potential greenhouse gas emissions regulations or carbon trading or tax programs. Although uncertain, these developments could increase our costs, reduce the demand for the products we sell and create delays in our obtaining air pollution permits for new or modified facilities.

Renewable fuels mandates have reduced and likely will further reduce demand for refined products. Tax incentives and other subsidies have made renewable fuels more competitive with refined products than they

 

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otherwise would have been, which may have reduced and may further reduce refined product margins and their ability to compete with renewable fuels. In 2007, the U.S. Congress passed the Energy Independence and Security Act (“EISA”), which, among other things, sets a target of 35 miles per gallon for the combined fleet of cars and light trucks in the United States by model year 2020, and contains a multiple-part Renewable Fuel Standard (“RFS2”). The RFS2 was 9.0 billion gallons of renewable fuel in 2008, and will increase to 36.0 billion gallons in 2022. In the near term, the RFS2 will be satisfied primarily with fuel ethanol blended into gasoline. The RFS2 presents production and logistics challenges for both the fuel ethanol and petroleum refining industries. The RFS2 has required, and may in the future continue to require, additional capital expenditures or expenses by us to accommodate increased fuel ethanol use. Within the overall 36.0 billion gallon RFS2, EISA establishes an advanced biofuel RFS2 that begins with 0.95 billion gallons in 2010 and increases to 21.0 billion gallons in 2022. Subsets within the advanced biofuel RFS2 include 1.15 billion gallons of biomass-based diesel in 2010 (due to combining the 2009 and 2010 volumes), which is capped at 1.0 billion gallons beginning in 2012, and 0.1 billion gallons of cellulosic biofuel in 2010, increasing to 16.0 gallons by 2022. The advanced biofuels programs will present specific challenges in that we may have to enter into arrangements with other parties to meet our obligations to use advanced biofuels, including biomass-based diesel and cellulosic biofuel, with potentially uncertain supplies of these new fuels. There will be compliance costs and uncertainties regarding how we will comply with the various requirements contained in this law and related regulations. We may experience a decrease in demand for refined petroleum products due to an increase in combined fleet mileage or due to refined petroleum products being replaced by renewable fuels.

Our operations and those of our predecessors could expose us to civil claims by third parties for alleged liability resulting from contamination of the environment or personal injuries caused by releases of crude oil, motor fuel and other substances. For example, we have been, and presently are, a defendant in lawsuits involving products liability and other claims related to alleged contamination of groundwater with the gasoline oxygenate methyl tertiary butyl ether (“MTBE”). We may become involved in further litigation or other proceedings, or we may be held responsible in existing or future litigation or proceedings, the costs of which could materially and adversely affect our business, financial condition, results of operations and cash flows.

We have in the past operated retail marketing sites with underground storage tanks (“USTs”) in various jurisdictions, and are currently operating retail marketing sites that have USTs in numerous states in the United States. Federal and state regulations and legislation govern the USTs, and compliance with those requirements can be costly. The operation of USTs also poses certain other risks, including damages associated with soil and groundwater contamination. Leaks from USTs which may occur at one or more of our retail marketing sites, or which may have occurred at our previously operated retail marketing sites, may impact soil or groundwater and could result in substantial cleanup costs, fines or civil liability for us. The discovery of additional contamination or the imposition of additional cleanup obligations at these or other sites in the future could result in significant additional costs.

We have in the past and will continue to dispose of various wastes at lawful disposal sites. Environmental laws including the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and similar state laws can impose liability for the entire cost of cleanup on any responsible party, without regard to negligence or fault, and impose liability on us for the conduct of others or conditions others have caused, or for our acts that complied with all applicable requirements when we performed them. See “Business—Environmental Matters” and “—Legal Proceedings.”

If foreign ownership of our stock exceeds certain levels, we could be prohibited from operating inland river vessels and barges, which could materially and adversely affect our business, financial condition, results of operations and cash flows.

We are subject to a variety of U.S. federal statutes and regulations, including the Shipping Act of 1916, as amended, and the Merchant Marine Act of 1920, as amended, that govern the ownership and operation of vessels used to carry cargo between U.S. ports (collectively, the “Maritime Laws”). Generally, the Maritime Laws

 

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require that vessels and barges engaged in U.S. coastwise trade, and corporations operating such vessels, must be owned by U.S. citizens. Although our certificate of incorporation contains provisions intended to assure compliance with these provisions of the Maritime Laws, if we fail to maintain compliance we would be prohibited from operating vessels and barges in the U.S. inland waters during any period in which we did not comply with these regulations. Such a prohibition could materially and adversely affect our business, financial condition, results of operations and cash flows.

If we are unable to complete capital projects at their expected costs and in a timely manner, or if the market conditions assumed in our project economics deteriorate, our business, financial condition, results of operations and cash flows could be materially and adversely affected.

Delays or cost increases related to capital spending programs involving engineering, procurement and construction of facilities (including the upgrading and expansion of our Detroit refinery and improvements and repairs to our other facilities) could materially adversely affect our ability to achieve forecasted internal rates of return and operating results. Delays in making required changes or upgrades to our facilities could subject us to fines or penalties as well as affect our ability to supply certain products we produce. Such delays or cost increases may arise as a result of unpredictable factors, many of which are beyond our control, including:

 

   

denial of or delay in receiving requisite regulatory approvals and/or permits;

 

   

unplanned increases in the cost of construction materials or labor;

 

   

disruptions in transportation of components or construction materials;

 

   

adverse weather conditions, natural disasters or other events (such as equipment malfunctions, explosions, fires or spills) affecting our facilities, or those of vendors or suppliers;

 

   

shortages of sufficiently skilled labor, or labor disagreements resulting in unplanned work stoppages;

 

   

market-related increases in a project’s debt or equity financing costs; and

 

   

nonperformance by, or disputes with, vendors, suppliers, contractors or subcontractors.

Any one or more of these factors could have a significant impact on our ongoing capital projects, including the upgrading and expansion of our Detroit refinery. If we were unable to make up the delays associated with such factors or to recover the related costs, or if market conditions change, it could materially and adversely affect our business, financial condition, results of operations and cash flows.

We will continue to incur substantial capital expenditures and operating costs as a result of compliance with, and changes in, environmental, health, safety and security laws and regulations, and, as a result, our business, financial condition, results of operations and cash flows could be materially and adversely affected.

Our businesses are subject to numerous laws, regulations and other requirements relating to the protection of the environment, including those relating to the discharge of materials into the environment, waste management, pollution prevention, greenhouse gas emissions, and characteristics and composition of gasoline and diesel fuels, as well as laws and regulations relating to public and employee safety and health and to facility security. We have incurred and will continue to incur substantial capital, operating and maintenance, and remediation expenditures as a result of these laws and regulations. To the extent these expenditures, as with all costs, are not ultimately reflected in the prices of our products and services, our operating results will be adversely affected. The specific impact of these laws and regulations on us and our competitors may vary depending on a number of factors, including the age and location of operating facilities, marketing areas, crude oil and feedstock sources, and production processes. We may also be required to make expenditures to modify operations, install pollution control equipment, perform site cleanups or curtail operations that could materially and adversely affect our business, financial condition, results of operations and cash flows. We may become subject to liabilities that we currently do not anticipate in connection with new, amended or more stringent requirements, stricter

 

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interpretations of existing requirements or the future discovery of contamination. In addition, any failure by us to comply with existing or future laws or regulations could result in civil penalties or criminal fines and other sanctions and enforcement actions against us.

Legislation or regulatory activity that impacts or could impact our operations includes, among others:

 

   

In 2009, the U.S. Environmental Protection Agency (the “EPA”) issued a finding that greenhouse gas emissions contribute to air pollution that endangers public health and welfare. Related to the endangerment finding, in April 2010, the EPA finalized a greenhouse gas emission standard for mobile sources (cars and other light duty vehicles). The endangerment finding, along with the mobile source standard and EPA’s determination that greenhouse gases are subject to regulation under the U.S. Clean Air Act, as amended (the “Clean Air Act”), will lead to widespread regulation of stationary sources of greenhouse gas emissions. The EPA has issued a so-called tailoring rule to limit the applicability of the EPA’s major permitting programs to larger sources of greenhouse gas emissions, such as our refineries. Although legal challenges have been filed or are expected to be filed against these EPA actions, no final court decisions are expected for at least another year. The EPA has also issued its plan for establishing greenhouse gas emission standards under the Clean Air Act in 2011. Under this plan, the EPA will propose standards for refineries in December 2011 and will issue final standards in November 2012. Congress may continue to consider legislation on greenhouse gas emissions, which may include a delay in the implementation of greenhouse gas emissions regulations by the EPA.

 

   

The Copenhagen Accord was reached in December 2009 with the United States pledging to reduce emissions 17 percent below 2005 levels by 2020.

 

   

The State of California enacted legislation effective in 2007 capping California’s greenhouse gas emissions at 1990 levels by 2020 and directed its responsible state agency to adopt mandatory reporting rules for significant sources of greenhouse gases. We do not conduct business in California, but other states where we have operations could adopt similar greenhouse gas legislation.

Although there may be adverse financial impacts (including compliance costs, potential permitting delays and potential reduced demand for crude oil or certain refined products) associated with any legislation, regulation, EPA action or other action, the extent and magnitude of that impact cannot be reliably or accurately estimated due to the fact that various requirements have only recently been adopted and the present uncertainty regarding additional measures and how they may be implemented. Private-party litigation has also been brought against various emitters of greenhouse gas emissions, but we have not been named in any of those lawsuits.

Worldwide political and economic developments could materially and adversely impact our business, financial condition, results of operations and cash flows.

Local political and economic factors in global markets could have a material adverse effect on us. Continued hostilities in the Middle East and the occurrence or threat of future terrorist attacks could adversely affect the economies of the United States and other developed countries. A lower level of economic activity could result in a decline in energy consumption, which could cause our revenues and margins to decline and limit our future growth prospects. These risks could lead to increased volatility in prices for refined products. Additionally, these risks could increase instability in the financial and insurance markets and make it more difficult or costly for us to access capital and to obtain the insurance coverage that we consider adequate.

In addition, a significant portion of our feedstock requirements is satisfied through supplies originating in Saudi Arabia, Kuwait, Canada, Mexico and various other foreign countries. We are, therefore, subject to the political, geographic and economic risks attendant to doing business with suppliers located in, and supplies originating from, those areas. If one or more of our supply sources were eliminated, or if political events disrupt our traditional crude oil supply, we believe that adequate alternative supplies of crude oil would be available, but it is possible that we would be unable to find alternative sources of supply. If we are unable to obtain adequate crude oil

 

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volumes or are able to obtain such volumes only at unfavorable prices, our operations could be adversely affected, including reduced sales volumes of refined products or reduced margins as a result of higher crude oil costs, materially and adversely impacting our business, financial condition, results of operations and cash flows.

Actions of governments through tax and other legislation, executive order and commercial restrictions could reduce our operating profitability. The U.S. government can prevent or restrict us from doing business with foreign countries.

Competitors that produce their own supply of feedstocks, have more extensive retail outlets, or have greater financial resources may have a competitive advantage.

The downstream petroleum business is highly competitive, particularly with regard to accessing crude oil and feedstock supply and marketing refined products. We compete with many companies for available supplies of crude oil and other feedstocks and for outlets for our refined products. In addition, we compete with producers and marketers in other industries that supply alternative forms of energy and fuels to satisfy the requirements of our industrial, commercial and individual consumers. We do not produce any of our crude oil supply. Many of our competitors, however, obtain a significant portion of their crude oil from their own exploration and production activities and some have more extensive retail outlets than we have. Competitors that have their own exploration and production activities are at times able to offset losses from downstream operations with profits from upstream operations, and may be better positioned to withstand periods of depressed refined product margins or feedstock shortages.

Some of our competitors also have significantly greater financial and other resources than we have. Those competitors may have a greater ability to respond to volatile industry or market conditions, such as shortages of crude oil or other feedstocks or intense price fluctuations.

We also face strong competition in the market for the sale of retail gasoline, diesel and merchandise. Our competitors include service stations and convenience stores owned or operated by fully integrated major oil companies or their dealers or jobbers and other well-recognized national or regional retail outlets, often selling gasoline or merchandise at very competitive prices. In recent years, several non-traditional retailers, such as supermarkets, club stores and mass merchants, have entered the retail fuel business. These non-traditional gasoline retailers have obtained a significant share of the transportation fuels market, and we expect their market share to grow. Because of their diversity, integration of operations, experienced management and greater resources, these companies may be better able to withstand volatile market conditions or levels of low or no profitability in the retail segment of the market. In addition, these retailers may use promotional pricing or discounts, both at the pump and in the store, to encourage in-store merchandise sales. These activities by our competitors could pressure us to offer similar discounts, adversely affecting our profit margins. Additionally, the loss of market share by our retail fuel and convenience stores to these and other retailers relating to either gasoline or merchandise could have a material adverse effect on our business, financial condition, results of operations and cash flows.

Our operations are subject to business interruptions and casualty losses. We do not insure against all potential losses and, therefore, our business, financial condition, results of operations and cash flows could be seriously harmed by unexpected liabilities and increased costs.

Our operations are subject to business interruptions due to scheduled refinery turnarounds and unplanned events such as explosions, fires, pipeline ruptures or other interruptions, crude oil or refined product spills, severe weather and labor disputes. For example, some of our pipelines provide the almost exclusive form of transportation of crude oil to, or refined products from, some of our refineries, and a prolonged interruption in service of any of these pipelines as a result of a pipeline rupture or due to any other reason could materially and adversely affect the operations, profitability and cash flows of the connected refinery. Similar risks may apply to third parties who transport crude oil and refined products to, from and among our facilities. Any prolonged,

 

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unplanned interruption in our operations could have a material adverse effect on our business, financial condition, results of operations and cash flows. Our operations are also subject to the additional hazards of pollution, releases of toxic gas and other environmental hazards and risks. These hazards could result in serious personal injury or loss of human life, significant damage to property and equipment, environmental pollution, impairment of operations and substantial losses to us. Various hazards have adversely affected us in the past, and damages resulting from a catastrophic occurrence in the future involving us or any of our assets or operations may result in our being named as a defendant in one or more lawsuits asserting potentially substantial claims or in our being assessed potentially substantial fines by governmental authorities.

We maintain insurance against many, but not all, potential losses or liabilities arising from operating hazards in amounts that we believe to be prudent. Uninsured losses and liabilities arising from operating hazards could reduce the funds available to us for capital and investment spending and could have a material adverse effect on our business, financial condition, results of operations and cash flows. Historically, we have maintained insurance coverage for physical damage and resulting business interruption to our major facilities, with significant self-insured retentions. In the future, we may not be able to maintain or obtain insurance of the type and amount we desire at reasonable rates. As a result of market conditions, premiums and deductibles for certain of our insurance policies have increased substantially and could escalate further. In some instances, certain insurance could become unavailable or available only for reduced amounts of coverage. For example, due to hurricane activity in recent years, the availability of insurance coverage for our facilities for windstorms in the Gulf of Mexico region has been reduced.

We are subject to interruptions of supply and increased costs as a result of our reliance on third-party transportation of crude oil and refined products.

We utilize the services of third parties to transport crude oil and refined products to and from our refineries. In addition to our own operational risks discussed above, we could experience interruptions of supply or increases in costs to deliver refined products to market if the ability of the pipelines or vessels to transport crude oil or refined products is disrupted because of weather events, accidents, governmental regulations or third-party actions. A prolonged disruption of the ability of a pipeline or vessels to transport crude oil or refined product to or from one or more of our refineries could have a material adverse effect on our business, financial condition, results of operation and cash flows.

Our operating results are seasonal and generally are lower in the first and fourth quarters of the year.

Demand for gasoline and diesel is higher during the spring and summer months than during the winter months in most of our markets due to seasonal increases in highway traffic. As a result, our operating results for the first and fourth quarters are generally lower than for those in the second and third quarters of each year.

We may incur losses as a result of our forward-contract activities and derivative transactions.

We currently use commodity derivative instruments, and we expect to enter into these types of transactions in the future, as well as derivative financial instruments such as interest rate swaps and interest rate cap agreements. If the instruments we utilize to hedge our exposure to various types of risk are not effective, we may incur losses.

Compliance with and changes in tax laws could materially and adversely affect our performance.

We are subject to extensive tax liabilities, including federal and state income taxes and transactional taxes such as excise, sales/use, payroll, franchise, withholding and property taxes. New tax laws and regulations and changes in existing tax laws and regulations could result in increased expenditures by us for tax liabilities in the future. Many of these liabilities are subject to periodic audits by taxing authorities. Subsequent changes to our tax liabilities as a result of these audits could subject us to interest and penalties.

 

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Litigation by private plaintiffs or government officials could materially and adversely affect our business, financial condition, results of operations and cash flows.

We currently are defending litigation and anticipate that we will be required to defend new litigation in the future. The subject matter of such litigation may include releases of hazardous substances from our facilities, products liability, consumer credit or privacy laws, product pricing or antitrust laws or any other laws or regulations that apply to our operations. While an adverse outcome in most litigation matters would not be expected to be material to us, in some litigation the plaintiff or plaintiffs seek alleged damages involving large classes of potential litigants, and may allege damages relating to extended periods of time or other alleged facts and circumstances that could increase the amount of potential damages. Attorneys general and other government officials may pursue litigation in which they seek to recover civil damages from companies on behalf of a state or its citizens for a variety of claims, including violation of consumer protection and product pricing laws or natural resources damages. We are defending litigation of that type and anticipate that we will be required to defend new litigation of that type in the future. If we are not able to successfully defend such litigation, it may result in liability to our company that could materially and adversely affect our business, financial condition, results of operations and cash flows. We do not have insurance covering all of these potential liabilities. In addition to substantial liability, plaintiffs in litigation may also seek injunctive relief which, if imposed, could have a material adverse effect on our future business, financial condition, results of operations and cash flows.

Distributions from our subsidiaries may be inadequate to fund our capital needs, payments on our indebtedness and dividends on our common stock.

As a holding company, we derive substantially all our income from, and hold substantially all of our assets through, our subsidiaries. As a result, we depend on distributions of funds from our subsidiaries to meet our capital needs and our payment obligations with respect to our indebtedness. Our operating subsidiaries are separate and distinct legal entities and have no obligation to pay any amounts due with respect to our indebtedness or to provide us with funds for our capital needs or our debt payment obligations, whether by dividends, distributions, loans or otherwise. In addition, provisions of applicable law, such as those restricting the legal sources of dividends, could limit our subsidiaries’ abilities to make payments or other distributions to us, or our subsidiaries could agree to contractual restrictions on their ability to make distributions.

Our rights with respect to the assets of any subsidiary and, therefore, the rights of our creditors with respect to those assets are effectively subordinated to the claims of that subsidiary’s creditors. In addition, if we were a creditor of any subsidiary, our rights as a creditor would be subordinate to any security interest in the assets of that subsidiary and any indebtedness of that subsidiary senior to that held by us.

If we cannot obtain funds from our subsidiaries as a result of restrictions under debt instruments, applicable laws and regulations or otherwise, we may not be able to meet our capital needs, pay interest or principal with respect to our indebtedness when due or pay dividends on our common stock, and we cannot assure you that we would be able to obtain the necessary funds from other sources on terms that will be acceptable to us.

The loss of the services of one or more of our key personnel, or our failure to attract, assimilate and retain trained personnel in the future, could disrupt our operations and result in loss of revenues.

Our success depends on the continued active participation of our executive officers and key operating personnel. The unexpected loss of the services of any one of these persons could adversely affect our operations.

Our operations require the services of employees having the technical training and experience necessary to obtain the proper operational results. As such, our operations depend, to a considerable extent, on the continuing availability of such personnel. If we should suffer any material loss of personnel to competitors or be unable to employ additional or replacement personnel with the requisite level of training and experience to adequately operate our business, our

 

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operations could be adversely affected. A significant increase in the wages paid by other employers could result in a reduction in our workforce, increases in wage rates, or both. If either of these events occurred for a significant period of time, our financial condition, results of operations and cash flows could be adversely impacted.

A portion of our workforce is unionized, and we may face labor disruptions that could materially and adversely affect our business, financial condition, results of operations and cash flows.

Approximately 30 percent of our refining employees are covered by collective bargaining agreements. The contracts for the hourly workers at our Catlettsburg and Canton refineries are scheduled to expire in January 2012, and the contracts for the hourly workers at our Texas City and Detroit refineries are scheduled to expire in March 2012 and January 2014, respectively. We cannot assure you that these contracts will not be renewed at an increased cost to us or that we will not experience work stoppages in the future as a result of labor disagreements.

Risks Relating to Ownership of Our Common Stock

Because there has not been any public market for our common stock, the market price and trading volume of our common stock may be volatile and you may not be able to resell your shares at or above the initial market price of our common stock following the spin-off.

Prior to the spin-off, there will have been no trading market for our common stock. We cannot assure you that an active trading market will develop or be sustained for our common stock after the spin-off, nor can we predict the prices at which our common stock will trade after the spin-off. The market price of our common stock could fluctuate significantly due to a number of factors, many of which are beyond our control, including:

 

   

fluctuations in our quarterly or annual earnings results or those of other companies in our industry;

 

   

failures of our operating results to meet the estimates of securities analysts or the expectations of our stockholders or changes by securities analysts in their estimates of our future earnings;

 

   

announcements by us or our customers, suppliers or competitors;

 

   

changes in laws or regulations which adversely affect our industry or us;

 

   

changes in accounting standards, policies, guidance, interpretations or principles;

 

   

general economic, industry and stock market conditions;

 

   

future sales of our common stock by our stockholders;

 

   

future issuances of our common stock by us; and

 

   

the other factors described in these “Risk Factors” and other parts of this information statement.

A large number of our shares are or will be eligible for future sale, which may cause the market price for our common stock to decline.

Upon completion of the spin-off, we will have outstanding an aggregate of approximately 355 million shares of our common stock. Virtually all of those shares will be freely tradable without restriction or registration under the Securities Act of 1933. We are unable to predict whether large amounts of our common stock will be sold in the open market following the spin-off. We are also unable to predict whether a sufficient number of buyers would be in the market at that time. As discussed in the immediately following risk factor, certain Marathon Oil stockholders may be required to sell shares of our common stock that they receive in the spin-off. In addition, it is possible that other Marathon Oil stockholders will sell the shares of our common stock they receive in the spin-off for various reasons. For example, such stockholders may not believe that our business profile or level of market capitalization as an independent company fits their investment objectives. The sale of significant amounts of our common stock or the perception in the market that this will occur may lower the market price of our common stock.

 

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If our common stock is not included in the Standard & Poor’s 500 Index or other stock indices, significant amounts of our common stock could be sold in the open market where they may not meet with offsetting new demand.

A portion of Marathon Oil’s outstanding common stock is held by index funds tied to the Standard & Poor’s 500 Index or other stock indices. Based on a review of publicly available information as of December 31, 2010, we believe that at least 17% of Marathon Oil’s outstanding common stock is held by index funds. We expect that our common stock will be included in the Standard & Poor’s 500 Index. To the extent that our common stock is not included in other stock indices at the time of the spin-off, index funds currently holding shares of Marathon Oil common stock will be required to sell the shares of our common stock they receive in the spin-off. We can provide no assurance that there will be sufficient new buying interest to offset sales by those index funds. Accordingly, our common stock could experience a high level of volatility immediately following the spin-off and, as a result, the price of our common stock could be adversely affected.

Provisions in our corporate documents and Delaware law could delay or prevent a change in control of our company, even if that change may be considered beneficial by some of our stockholders.

The existence of some provisions of our certificate of incorporation and by-laws and Delaware law could discourage, delay or prevent a change in control of our company that a stockholder may consider favorable. These include provisions:

 

   

providing that our board of directors fixes the number of members of the board;

 

   

providing for the division of our board of directors into three classes with staggered terms;

 

   

limiting who may call special meetings of stockholders;

 

   

prohibiting stockholder action by written consent, thereby requiring stockholder action to be taken at a meeting of the stockholders;

 

   

establishing advance notice requirements for nominations of candidates for election to our board of directors or for proposing matters that can be acted on by stockholders at stockholder meetings;

 

   

establishing supermajority vote requirements for certain amendments to our certificate of incorporation and stockholder proposals for amendments to our by-laws;

 

   

limiting the right of stockholders to remove directors;

 

   

authorizing a large number of shares of common stock that are not yet issued, which would allow our board of directors to issue shares to persons friendly to current management, thereby protecting the continuity of our management, or which could be used to dilute the stock ownership of persons seeking to obtain control of us; and

 

   

authorizing the issuance of “blank check” preferred stock, which could be issued by our board of directors to increase the number of outstanding shares and thwart a takeover attempt.

In addition, following the spin-off, we will be subject to Section 203 of the Delaware General Corporation Law, which may have an anti-takeover effect with respect to transactions not approved in advance by our board of directors, including discouraging takeover attempts that might result in a premium over the market price for shares of our common stock.

We believe these provisions protect our stockholders from coercive or otherwise unfair takeover tactics by requiring potential acquirors to negotiate with our board of directors and by providing our board of directors with more time to assess any acquisition proposal, and are not intended to make our company immune from takeovers. However, these provisions apply even if the offer may be considered beneficial by some stockholders and could delay or prevent an acquisition that our board of directors determines is not in the best interests of our company and our stockholders. See “Description of Capital Stock—Anti-Takeover Effects of Provisions of our Certificate of Incorporation and By-laws.”

 

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Provisions in our certificate of incorporation that limit ownership of our capital stock by non-U.S. citizens may adversely affect the liquidity of our capital stock.

To facilitate compliance with the Maritime Laws, our certificate of incorporation limits the aggregate percentage ownership by non-U.S. citizens of our common stock or any other class of our capital stock to 23% of the outstanding shares. We may prohibit transfers that would cause ownership of our common stock or any other class of our capital stock by non-U.S. citizens to exceed 23%. Our certificate of incorporation also authorizes us to effect any and all measures necessary or desirable to monitor and limit foreign ownership of our common stock or any other class of our capital stock. These limitations could have an adverse impact on the liquidity of the market for our common stock following the spin-off if holders are unable to transfer shares to non-U.S. citizens due to the limitations on ownership by non-U.S. citizens. Any such limitation on the liquidity of the market for our common stock could adversely impact the market price of our common stock.

We may issue preferred stock with terms that could dilute the voting power or reduce the value of our common stock.

Our certificate of incorporation authorizes us to issue, without the approval of our stockholders, one or more classes or series of preferred stock having such designation, powers, preferences and relative, participating, optional and other special rights, including preferences over our common stock respecting dividends and distributions, as our board of directors generally may determine. The terms of one or more classes or series of preferred stock could dilute the voting power or reduce the value of our common stock. For example, we could grant holders of preferred stock the right to elect some number of our directors in all events or on the happening of specified events or the right to veto specified transactions. Similarly, the repurchase or redemption rights or liquidation preferences we could assign to holders of preferred stock could affect the residual value of the common stock. See “Description of Capital Stock—Preferred Stock.”

 

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CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS

This information statement includes forward-looking statements. You can identify our forward-looking statements by words such as “anticipate,” “believe,” “estimate,” “expect,” “forecast,” “goal,” “intend,” “plan,” “predict,” “project,” “seek,” “target,” “could,” “may,” “should” or “would” or other similar expressions that convey the uncertainty of future events or outcomes. When considering these forward-looking statements, you should keep in mind the risk factors and other cautionary statements contained in this information statement.

Forward-looking statements include, but are not limited to, statements that relate to, or statements that are subject to risks, contingencies or uncertainties that relate to:

 

   

the spin-off, as well as the anticipated effects of restructuring or reorganization of business components;

 

   

future levels of revenues, refining and marketing gross margins, retail gasoline and distillate gross margins, merchandise margins, income from operations, net income or earnings per share;

 

   

anticipated volumes of feedstock, throughput, sales or shipments of refined products;

 

   

anticipated levels of regional, national and worldwide prices of hydrocarbons and refined products;

 

   

anticipated levels of crude oil and refined product inventories;

 

   

future levels of capital, environmental or maintenance expenditures and general and administrative and other expenses;

 

   

the success or timing of completion of ongoing or anticipated capital or maintenance projects;

 

   

expectations regarding the acquisition or divestiture of assets;

 

   

the potential effects of judicial or other proceedings on our business, financial condition results of operations and cash flows; and

 

   

the anticipated effects of actions of third parties such as competitors, or federal, foreign, state or local regulatory authorities, or plaintiffs in litigation.

We have based our forward-looking statements on our current expectations, estimates and projections about our industry and our company. We caution that these statements are not guarantees of future performance and you should not rely unduly on them, as they involve risks, uncertainties, and assumptions that we cannot predict. In addition, we have based many of these forward-looking statements on assumptions about future events that may prove to be inaccurate. While our management considers these assumptions to be reasonable, they are inherently subject to significant business, economic, competitive, regulatory and other risks, contingencies and uncertainties, most of which are difficult to predict and many of which are beyond our control. Accordingly, our actual results may differ materially from the future performance that we have expressed or forecast in our forward-looking statements. Differences between actual results and any future performance suggested in our forward-looking statements could result from a variety of factors, including the following:

 

   

changes in general economic, market or business conditions;

 

   

the domestic and foreign supplies of crude oil and other feedstocks;

 

   

the ability of the members of the Organization of Petroleum Exporting Countries (“OPEC”) to agree on and to influence crude oil price and production controls;

 

   

the domestic and foreign supplies of refined products such as gasoline, diesel fuel, jet fuel, home heating oil and petrochemicals;

 

   

the level of foreign imports of refined products;

 

   

refining industry overcapacity or undercapacity;

 

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changes in the cost or availability of third-party vessels, pipelines and other means of transportation for crude oil feedstocks and refined products;

 

   

the price, availability and acceptance of alternative fuels and alternative-fuel vehicles and laws mandating such fuels or vehicles;

 

   

fluctuations in consumer demand for refined products, including seasonal fluctuations;

 

   

political and economic conditions in nations that consume refined products, including the United States, and in crude oil producing regions, including the Middle East, Africa and South America;

 

   

the actions taken by our competitors, including pricing adjustments, expansion of retail activities, and the expansion and retirement of refining capacity in response to market conditions;

 

   

changes in fuel and utility costs for our facilities;

 

   

delay of, cancellation of or failure to implement planned capital projects and realize the benefits projected for such projects, or cost overruns associated with such projects;

 

   

accidents or other unscheduled shutdowns affecting our refineries, machinery, pipelines or equipment, or those of our suppliers or customers;

 

   

earthquakes, hurricanes, tornadoes, other natural disasters and irregular weather, which can unforeseeably affect the price or availability of crude oil and other feedstocks and refined products;

 

   

acts of terrorism aimed at either our facilities or other facilities that could impair our ability to produce or transport refined products or receive feedstocks;

 

   

legislative or regulatory action, including the introduction, enactment or modification of federal, state, municipal or foreign legislation or rulemakings, which may adversely affect our business or operations;

 

   

rulings, judgments or settlements in litigation or other legal, tax or regulatory matters, including unexpected environmental remediation costs, in excess of any reserves or insurance coverage;

 

   

labor and material shortages;

 

   

the maintenance of satisfactory relationships with labor unions and joint venture partners;

 

   

the ability and willingness of parties with whom we have material relationships to perform their obligations to us;

 

   

changes in the credit ratings assigned to our debt securities and trade credit and changes affecting the credit markets generally; and

 

   

the other factors described under the heading “Risk Factors” and in other parts of this information statement.

Neither we nor Marathon Oil undertakes any obligation to update the forward-looking statements included in this information statement to reflect events or circumstances after the date of this information statement, unless we are required by applicable securities laws to do so.

 

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THE SPIN-OFF

General

The board of directors of Marathon Oil regularly reviews the various operations conducted by Marathon Oil to ensure that resources are deployed and activities are pursued in the best interest of its stockholders. On January 13, 2011, Marathon Oil announced that its board of directors had authorized its management to take various actions in contemplation of the distribution of our common stock to Marathon Oil’s stockholders in a spin-off transaction. This authorization is subject to final approval by the Marathon Oil board of directors, which approval is subject to, among other things, the conditions described below under “—Spin-Off Conditions and Termination.”

We are currently a wholly owned subsidiary of Marathon Oil. Our company was incorporated in Delaware as of November 9, 2009, in conjunction with an internal restructuring. Marathon Oil will transfer to us the capital stock or other equity interests in subsidiaries that own generally all the assets, and are obligated on generally all the liabilities, comprising Marathon Oil’s refining, marketing and transportation business, which Marathon Oil intends to separate from its other operations.

We will be separated from Marathon Oil and will become an independent, publicly traded company through a pro rata distribution of 100% of our outstanding common stock to Marathon Oil’s stockholders, which we refer to as the distribution or the spin-off, on [                    ] , 2011, the distribution date. As a result of the spin-off, each holder of Marathon Oil common stock as of 5:00 p.m. New York City Time on [                    ] , 2011, the record date, will be entitled to:

 

   

receive one share of our common stock for every two shares of Marathon Oil common stock owned by such holder; and

 

   

retain such holder’s shares in Marathon Oil.

Marathon Oil stockholders will not be required to pay for shares of our common stock received in the spin-off or to surrender or exchange shares of Marathon Oil common stock in order to receive our common stock or to take any other action in connection with the spin-off. No vote of Marathon Oil stockholders is required or sought in connection with the spin-off, and Marathon Oil stockholders have no appraisal rights in connection with the spin-off.

Reasons for the Spin-Off

Marathon Oil’s board and management believe that our separation from Marathon Oil will provide the following benefits:

 

   

enhance the flexibility of the management team of each company to make business and operational decisions that are in the best interests of its business and to allocate capital and corporate resources in a manner that focuses on achieving its own strategic priorities;

 

   

facilitate growth of Marathon Oil’s and MPC’s businesses;

 

   

improve investor understanding of the separate businesses of Marathon Oil and MPC and facilitate valuation assessments for the securities of both companies, which should appeal to the different investor bases of the upstream and downstream businesses; and

 

   

enhance the ability of each company to attract employees with appropriate skill sets, to incentivize its key employees with equity based compensation that is aligned with the performance of its own operations and to retain key employees for the long term.

Enhancing business and operational decision making

Marathon Oil’s board of directors and management also took into account the fact that the differing market dynamics require fundamentally different business strategies and offer significantly different business

 

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opportunities for growth. They determined that the spin-off should allow the management team of each company to focus on its strategic priorities and make business and operational decisions that are in the best interest of its operations, taking into consideration the different challenges and opportunities and different financial profiles and capital needs pertinent to its business. As separate companies, each will be able independently to prioritize allocation of resources and capital in support of its business strategies. For example, we have substantial internal growth projects, including a refinery upgrade project at our Detroit, Michigan refinery that requires a significant deployment of capital. This project has effectively competed with other investment opportunities within Marathon Oil. As separate companies, each of Marathon Oil and our company will no longer have to compete for investment capital with the other, and each would be in a position to pursue a growth strategy to optimize its own operations. By eliminating the necessary time and resources required to resolve conflicting business priorities and strategic needs, the two businesses will be better able to compete through quicker decision making, more efficient deployment of capital and corporate resources and enhanced responsiveness to market demands.

Facilitating growth of Marathon Oil’s and MPC’s Businesses

The anticipated expansion and realignment of the existing stockholder base discussed above is expected to give each of Marathon Oil and us a reduced cost of equity, improving the ability of each of Marathon Oil and us to fund growth objectives.

Marathon Oil’s board of directors and management do not expect that the spin-off will improve access to debt markets, particularly for us. As integration has enhanced Marathon Oil’s scale and diversity of operations, given the countercyclical nature of upstream and downstream operations, the separation of the two businesses may lead to an increase in the overall cost of debt funding and a decrease in overall debt capacity. Nonetheless, Marathon Oil’s board of directors and management concluded that the spin-off should not reduce debt financing alternatives meaningfully in a manner that would outweigh the other benefits of the spin-off.

Improving investor understanding of the separate businesses

Our petroleum downstream operations are significantly different from Marathon Oil’s upstream operations, which include U.S. and international oil and gas exploration and production operations, integrated gas operations and oil sands mining operations. These operations are driven by differing market dynamics and economic factors. Key drivers of Marathon Oil’s upstream operations include supply, demand and prices of crude oil and natural gas, the ability to discover, acquire and develop reserves, the control of operating and finding and development costs and the availability of substitute energy sources such as coal or alternative fuels. Upstream companies are typically capital intensive throughout the entire business cycle and must continuously deploy significant amounts of capital to maintain production and revenue growth. In contrast, our downstream operations are driven primarily by the difference between prices of the crude oil and other feedstocks we purchase and the prices we obtain for the refined products we sell. Key drivers include throughput rates and capacity utilization feedstock flexibility, feedstock costs, yields of refined products and transportation and storage costs. These differing market dynamics and other economic factors require fundamentally different informational inputs to assess the performance of the upstream and downstream businesses.

Marathon Oil’s board of directors and management concluded that, as part of an integrated business, Marathon Oil’s upstream operations and our downstream operations have not been appropriately appreciated or understood by investors and, as a result, have not been fully valued in the market for Marathon Oil’s common stock. They believe that the spin-off will improve the investment community’s visibility into and understanding of each of Marathon Oil’s upstream operations and our downstream operations, particularly as each company is able to provide more focused and targeted communication to the market regarding its own business strategies, assets, operational performance, financial achievements and management teams. In addition, Marathon Oil’s board of directors and management concluded that, because the separation of the upstream and downstream operations will allow investors to invest in the stock of Marathon Oil and our company in accordance with differing investment preferences, each of Marathon Oil and our company will be more likely to attract an

 

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investor base that has a deeper understanding and interest in the businesses of the separate companies. Marathon Oil’s board of directors and management noted that there are many large investors in other separate upstream companies and downstream companies who are not currently stockholders of Marathon Oil, and that the spin-off should provide the opportunity for Marathon Oil and us collectively to expand and realign our stockholder bases.

Enhancing ability to attract, retain and appropriately reward key employees

The management skills required to run a successful upstream business are different from those required to run a successful downstream business. Marathon Oil’s board of directors and management concluded that separating the two businesses should improve both businesses’ ability to attract managers with the appropriate skill sets. In addition, they concluded that the proposed separation will allow each company to provide incentive compensation to its key employees in the form of equity-based incentive compensation that is better aligned with the performance of each business. By separating the two companies, management of each should be in an improved position to attract employees with the correct skill set, to motivate them appropriately, and to retain them for the long term.

Results of the Spin-Off

After the spin-off, we will be an independent, publicly traded company. Immediately following the spin-off, we expect that approximately 355 million shares of our common stock will be issued and outstanding, based on the distribution of one share of our common stock for every two shares of Marathon Oil common stock outstanding and the anticipated number of shares of Marathon Oil common stock outstanding as of the record date. The actual number of shares of our common stock to be distributed will be determined based on the number of shares Marathon Oil common stock outstanding as of the record date.

We and Marathon Oil will be parties to a number of agreements that govern the spin-off and our future relationship. For a more detailed description of these agreements, please see “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us.”

You will not be required to make any payment for the shares of MPC common stock you receive, nor will you be required to surrender or exchange your shares of Marathon Oil common stock or take any other action in order to receive the shares of MPC common stock to which you are entitled. The spin-off will not affect the number of outstanding shares of Marathon Oil common stock or any rights of Marathon Oil stockholders, although it will affect the market value of the outstanding Marathon Oil common stock.

Manner of Effecting the Spin-Off

The general terms and conditions relating to the spin-off are set forth in a separation and distribution agreement between Marathon Oil and us. For a description of the terms of that agreement, see “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Separation and Distribution Agreement.” Under the separation and distribution agreement, the spin-off will be effective on the distribution date. As a result of the spin-off, each Marathon Oil stockholder will be entitled to receive one share of our common stock for every two shares of Marathon Oil common stock owned on the record date. As discussed under “—Trading of Marathon Oil Common Stock After the Record Date and Prior to the Distribution,” if a holder of record of Marathon Oil common stock sells those shares in the “regular way” market after the record date and prior to the distribution, that stockholder also will be selling the right to receive shares of our common stock in the distribution. The distribution will be made in book-entry form. For registered Marathon Oil stockholders, our transfer agent will credit their shares of our common stock to book-entry accounts established to hold their shares of our common stock. Book-entry refers to a method of recording stock ownership in our records in which no physical certificates are issued. For stockholders who own Marathon Oil common stock through a bank or brokerage firm, their shares of our common stock will be credited to their accounts by the bank or broker. See “—When and How You Will Receive MPC Shares” below. Each share of our common stock that

 

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is distributed will be validly issued, fully paid and nonassessable. Holders of shares of our common stock will not be entitled to preemptive rights. See “Description of Capital Stock.” Following the spin-off, stockholders whose shares are held in book-entry form may request the transfer of their shares of our common stock to a brokerage or other account at any time, without charge.

When and How You Will Receive MPC Shares

On the distribution date, Marathon Oil will release its shares of our common stock for distribution by Computershare Trust Company, N.A., the distribution agent. The distribution agent will cause the shares of our common stock to which you are entitled to be registered in your name or in the “street name” of your bank or brokerage firm.

“Street Name” Holders . Many Marathon Oil stockholders have Marathon Oil common stock held in an account with a bank or brokerage firm. If this applies to you, that bank or brokerage firm is the registered holder that holds the shares on your behalf. For stockholders who hold their Marathon Oil common stock in an account with a bank or brokerage firm, our common stock being distributed will be registered in the “street name” of your bank or broker, who in turn will electronically credit your account with the shares that you are entitled to receive in the distribution. We anticipate that banks and brokers will generally credit their customers’ accounts with our common stock on or shortly after the distribution date. We encourage you to contact your bank or broker if you have any questions regarding the mechanics of having your shares credited to your account.

Registered Holders. If you are the registered holder of Marathon Oil common stock and hold your Marathon Oil common stock either in physical form or in book-entry form, the shares of our common stock distributed to you will be registered in your name and you will become the holder of record of that number of shares of our common stock. Our distribution agent will send you a statement reflecting your ownership of our common stock.

Direct Registration System. As part of the spin-off, we will be adopting a direct registration system for book-entry share registration and transfer of our common stock. The shares of our common stock to be distributed in the spin-off will be distributed as uncertificated shares registered in book-entry form through the direct registration system. No certificates representing your shares will be mailed to you in connection with the spin-off. Under the direct registration system, instead of receiving stock certificates, you will receive a statement reflecting your ownership interest in our shares. The distribution agent will begin mailing book-entry account statements reflecting your ownership of shares promptly after the distribution date. You can obtain more information regarding the direct registration system by contacting our transfer agent and registrar.

Treatment of Fractional Shares

The transfer agent will aggregate all fractional shares and sell them on behalf of those holders who otherwise would be entitled to receive a fractional share. We anticipate that these sales will occur as soon as practicable after the distribution date. Those holders will then receive a cash payment in the form of a check in an amount equal to their pro rata share of the total net proceeds of those sales. If you physically hold Marathon Oil stock certificates, your check for any cash that you may be entitled to receive instead of fractional shares of our common stock will be mailed to you separately.

It is expected that all fractional shares held in street name will be aggregated and sold by brokers or other nominees according to their standard procedures. You should contact your broker or other nominee for additional details.

None of Marathon Oil, our company or the transfer agent will guarantee any minimum sale price for the fractional shares of our common stock. Neither we nor Marathon Oil will pay any interest on the proceeds from the sale of fractional shares. The receipt of cash in lieu of fractional shares will generally be taxable to the recipient stockholders. See “—Material U.S. Federal Income Tax Consequences of the Spin-Off.”

 

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Transferability of Shares You Receive

The shares of our common stock distributed to Marathon Oil stockholders will be freely transferable, except for shares received by persons who may be deemed to be our “affiliates” under the Securities Act of 1933, as amended, or the Securities Act. Persons who may be deemed to be our affiliates after the spin-off generally include individuals or entities that control, are controlled by, or are under common control with us, and include our directors and certain of our officers. Our affiliates will be permitted to sell their shares of MPC common stock only pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements of the Securities Act, such as the exemption afforded by Rule 144.

Under Rule 144, an affiliate may not sell within any three-month period shares of our common stock in excess of the greater of:

 

   

1% of the then outstanding number of shares of our common stock; and

 

   

the average weekly trading volume of our common stock on the NYSE during the four calendar weeks preceding the filing of a notice with the SEC on Form 144 with respect to such sale.

Sales under Rule 144 are also subject to certain provisions regarding the manner of sale, notice requirements and availability of current public information about us.

Stock-Based Plans

In connection with the spin-off, Marathon Oil’s outstanding equity-based compensation awards generally will be treated as follows:

 

   

Outstanding options to purchase shares of Marathon Oil common stock that are vested, whether held by a current or former officer or employee of Marathon Oil or a current or former officer or employee of MPC, will be adjusted so that the holders of the options will hold options to purchase both Marathon Oil and MPC common stock. The Marathon Oil and MPC options received by each optionee, when combined, will generally preserve the intrinsic value of each original option grant and the ratio of the exercise price to the fair market value of Marathon Oil common stock on the distribution date.

 

   

Outstanding options to purchase shares of Marathon Oil common stock that are not vested and that are held by current officers or employees of Marathon Oil who are not and will not become officers or employees of MPC immediately after the spin-off will be replaced with adjusted options to purchase Marathon Oil common stock. Those adjusted options will generally preserve the intrinsic value of each original option grant and the ratio of the exercise price to the fair market value of Marathon Oil common stock on the distribution date. There are no unvested options to purchase shares of Marathon Oil common stock held by former officers or former employees.

 

   

Outstanding options to purchase shares of Marathon Oil common stock that are not vested and that are held by individuals who are or will become officers or employees of MPC immediately after the spin-off will be replaced with substitute options to purchase MPC common stock. Those substitute options will generally preserve the intrinsic value of each original option grant and the ratio of the exercise price to the fair market value of Marathon Oil common stock on the distribution date.

 

   

Outstanding vested Marathon Oil stock appreciation rights will be replaced with both adjusted Marathon Oil stock appreciation rights and MPC stock appreciation rights to receive a payment in cash or common stock. Both stock appreciation rights, when combined, will generally preserve the aggregate intrinsic value of each original stock appreciation right grant. They will also generally preserve the ratio of exercise price to the fair market value of Marathon Oil common stock on the distribution date. There are no outstanding stock appreciation rights issued by Marathon Oil that have not yet vested.

 

   

The Marathon Oil restricted stock awards and restricted stock unit awards of officers or employees of Marathon Oil who are not and will not become officers or employees of MPC immediately after the

 

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spin-off will be replaced with adjusted Marathon Oil restricted stock awards or restricted stock unit awards, as applicable, each of which will generally preserve the value of the original award determined as of the distribution date.

 

   

The Marathon Oil restricted stock awards and restricted stock unit awards of persons who are or will become officers or employees of MPC immediately after the spin-off will be converted into substitute MPC restricted stock awards or restricted stock unit awards, as applicable, each of which will generally preserve the value of the original award determined as of the distribution date.

 

   

The Marathon Oil director restricted stock unit awards of all nonemployee directors who are not and will not become directors of MPC immediately after the spin-off will be replaced with adjusted Marathon Oil director restricted stock unit awards, each of which will generally preserve the value of the original awards determined as of the distribution date.

 

   

The Marathon Oil director restricted stock unit awards of all nonemployee directors who are or will become directors of MPC immediately after the spin-off will be replaced with substitute MPC director restricted stock unit awards, each of which will generally preserve the value of the original awards determined as of the distribution date.

 

   

Performance units having a three-year performance period have been granted to Marathon Oil officers. At the effective time of the spin-off, three performance unit grants are expected to be outstanding: the 2009 grant for the 2009-2011 performance period, the 2010 grant for the 2010-2012 performance period, and the 2011 grant for the 2011-2013 performance period. The value of the performance units will be calculated as if the relevant performance period had ended on the distribution date, and each holder of performance units shall receive a prorated payment based upon the portion of the performance period actually completed.

There may be a small number of employees who transfer between Marathon Oil and MPC following the spin-off but before January 1, 2012. If these employees hold outstanding stock options, shares of restricted stock or restricted stock units which are unvested on their transfer date, their stock options, restricted stock or restricted stock units will be adjusted effective as of the date of their transfer based on the ratio of the trading price of Marathon Oil common stock and MPC common stock, as applicable, preceding and following the transfer. In addition, a small number of employees in Marathon Oil’s international operations will have their vested stock options adjusted in the same manner as unvested options.

In the case of adjusting Marathon Oil options and stock appreciation rights or granting substitute MPC options and stock appreciation rights, the conversion formula may result in fractional shares. Any fractional shares subject to adjusted Marathon Oil options and substitute MPC options will be disregarded, and the number of shares subject to such options will be rounded down to the next lower whole number of shares. Any fractional shares underlying stock appreciation rights will be similarly disregarded.

For additional information on the treatment of Marathon Oil equity-based compensation awards, see “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Employee Matters Agreement.”

Material U.S. Federal Income Tax Consequences of the Spin-Off

The following is a discussion of the material U.S. federal income tax consequences to us, Marathon Oil and U.S. Holders (as defined below) and Non-U.S. Holders (as defined below) of Marathon Oil common stock as a result of the distribution of our common stock to holders of Marathon Oil common stock in the spin-off. This discussion does not address U.S. federal income tax considerations that affect the treatment of a stockholder who may be subject to special treatment under the Code (for example, stockholders who acquired Marathon Oil common stock as compensation or stockholders that are insurance companies, financial institutions, dealers in securities or tax-exempt organizations). Your individual circumstances may affect the tax consequences of the

 

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distribution of our common stock to you in the spin-off. In addition, no information is provided in this discussion regarding tax consequences under applicable foreign, state, local or other laws, other than U.S. federal income tax laws. The distribution may be taxable to you under such foreign, state, local and other laws. Further, this discussion is based on provisions of the Code, applicable Treasury regulations thereunder, IRS rulings and judicial decisions, each as in effect as of the date of this information statement. Future legislative, administrative or judicial changes or interpretations could affect the accuracy of the statements set forth in this discussion, and could apply retroactively. You are advised to consult your own tax advisor as to the specific tax consequences of the distribution of the MPC common stock to you in the spin-off.

For purposes of this discussion, a U.S. Holder is a beneficial owner of Marathon Oil common stock that is, for U.S. federal income tax purposes:

 

   

an individual who is a citizen or resident of the United States;

 

   

a corporation (or other entity taxable as a corporation for United States federal income tax purposes) created or organized in or under the laws of the United States or any state thereof (including the District of Columbia);

 

   

an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or

 

   

a trust, if (1) a court within the United States is able to exercise primary supervision over its administration and one or more U.S. persons have the authority to control all of the substantial decisions of such trust or (2) in the case of a trust that was treated as a domestic trust under the law in effect before 1997, a valid election is in place under applicable Treasury regulations.

A Non-U.S. Holder is a beneficial owner (other than an entity treated as a partnership or other pass-through entity for U.S. federal income tax purposes) of shares of Marathon Oil common stock who is not a U.S. Holder.

If a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) holds Marathon Oil common stock, the tax treatment of a partner will generally depend on the status of the partner and on the activities of the partnership. Partners in a partnership holding Marathon Oil common stock should consult their own tax advisors regarding the tax consequences of the spin-off.

For a description of the agreements under which we and Marathon Oil have provided for tax sharing and other tax matters, see “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Tax Sharing Agreement.”

Material U.S. Federal Income Tax Consequences of the Spin-Off to U.S. Holders

Tax-Free Status of the Spin-Off . Marathon Oil has requested a private letter ruling from the IRS to the effect that, for United States federal income tax purposes:

 

   

No gain or loss will be recognized by (and no amount will be included in the income of) the stockholders of Marathon Oil upon the receipt of the stock of MPC in connection with the spin-off, other than with respect to fractional shares of our common stock for which cash is received.

 

   

No gain or loss will be recognized by Marathon Oil on the distribution of the stock of MPC in connection with the spin-off.

 

   

No gain or loss will be recognized by Marathon Oil or certain other members of its consolidated tax reporting group as a result of certain internal restructuring transactions undertaken in connection with the spin-off.

 

   

The basis of the Marathon Oil shares in the hands of the stockholders of Marathon Oil will be allocated between the Marathon Oil shares and the MPC shares received in the spin-off in proportion to their fair market values effective with the spin-off.

 

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The holding period of the stock of MPC to be received by the Marathon Oil stockholders will include the holding period of the Marathon Oil stock held by each such stockholder prior to the distribution, provided that the shares of Marathon Oil were held as a capital asset on the date of the distribution.

 

   

A Marathon Oil stockholder that receives cash in lieu of a fractional share of our common stock pursuant to the spin-off should generally recognize capital gain or loss, provided that the fractional share is considered to be held as a capital asset, measured by the difference between the cash received for such fractional share and the stockholder’s tax basis in that fractional share, as determined above.

 

   

Proper allocation of earnings and profits between Marathon Oil and MPC will be made.

Although a private letter ruling from the IRS generally is binding on the IRS, if the factual representations or assumptions made in the private letter ruling request are inaccurate or incomplete in any material respect, then Marathon Oil will not be able to rely on the ruling. Furthermore, the IRS will not rule on whether a distribution such as the spin-off satisfies certain legal requirements necessary to obtain tax-free treatment under Section 355 of the Code. Rather, the private letter ruling will be based on representations by Marathon Oil that those requirements have been satisfied, and any inaccuracy in those representations could invalidate the ruling.

The spin-off is conditioned on the receipt by Marathon Oil of an opinion of Bingham McCutchen LLP, special tax counsel for Marathon Oil (or other nationally recognized tax counsel), in form and substance satisfactory to Marathon Oil, to the effect that the distribution of shares of MPC common stock in the spin-off will qualify as tax-free to us, Marathon Oil and Marathon Oil stockholders for U.S. federal income tax purposes under Sections 355 and 368(a) and related provisions of the Code, and that certain internal restructuring transactions undertaken in connection with the spin-off similarly will be tax-free to us, Marathon Oil and other members of the Marathon Oil consolidated tax reporting group. The opinion will address those matters upon which the IRS will not rule and will rely on the private letter ruling as to matters covered by the private letter ruling. The opinion will rely on, among other things, the continuing validity of the private letter ruling and various assumptions and representations as to factual matters and certain undertakings made by Marathon Oil and us, which, if inaccurate or incomplete in any material respect, would jeopardize the conclusions reached by such counsel in its opinion. The opinion will not be binding on the IRS or the courts, and there can be no assurance that the IRS will not challenge the qualification of the spin-off as a transaction under Sections 355 and 368(a) of the Code or that any such challenge would not prevail.

If the distribution of shares of MPC common stock in the spin-off were not to qualify as a tax-free distribution for U.S. federal income tax purposes, then each stockholder of Marathon Oil receiving shares of MPC common stock in the spin-off would generally be treated as receiving a taxable distribution in an amount equal to the fair market value of the MPC common stock received to the extent of Marathon Oil’s current and accumulated earnings and profits. Any amount that exceeds Marathon Oil’s earnings and profits would be treated first as a nontaxable return of capital to the extent of such stockholder’s tax basis in its shares of Marathon Oil common stock, with any remaining amount being taxed as a capital gain. In addition, Marathon Oil would recognize a taxable gain equal to the excess of the fair market value of the MPC common stock distributed over Marathon Oil’s adjusted tax basis in such stock. Taxable distributions of MPC common stock may be subject to “backup withholding,” subject to various exceptions, as described below under “—Cash in Lieu of Fractional Shares.”

Even if the distribution of shares of MPC common stock in the spin-off otherwise qualifies as a tax-free distribution, such distribution (or certain related internal restructuring transactions) might be taxable to Marathon Oil or its affiliates under Section 355(e) of the Code if 50% or more of either the total voting power or the total fair market value of the stock of Marathon Oil or MPC is acquired as part of a plan or series of related transactions that includes the spin-off. If Section 355(e) applies as a result of such an acquisition, Marathon Oil or its affiliates would recognize a taxable gain as described above, but the spin-off would generally be tax free to Marathon Oil stockholders. Under some circumstances, the tax sharing agreement would require us to indemnify Marathon Oil for the tax liability associated with the taxable gain. See “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Tax Sharing Agreement.”

 

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Indemnification . Under the tax sharing agreement between Marathon Oil and us, we have agreed to indemnify Marathon Oil and its affiliates if we take, or fail to take, any action where such action, or failure to act, precludes the spin-off or the related internal restructuring transactions from qualifying as tax-free transactions. See “Relationship with Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us.”

Cash in Lieu of Fractional Shares . A holder who receives cash in lieu of a fractional share of our common stock in connection with the spin-off will generally recognize capital gain or loss measured by the difference between the cash received for such fractional share and the holder’s tax basis in the fractional share. An individual U.S. holder would generally be subject to U.S. federal income tax at a maximum rate of 15% on any such capital gain, assuming that the U.S. holder had held all of its Marathon Oil common stock for more than one year. A payment of cash in lieu of a fractional share of our common stock made in connection with the spin-off may, under certain circumstances, be subject to “backup withholding” unless a holder provides proof of an applicable exemption or a correct taxpayer identification number, and otherwise complies with the requirements of the backup withholding rules. Corporations will generally be exempt from backup withholding, but may be required to provide a certification to establish their entitlement to exemption. Backup withholding does not constitute an additional tax, but is merely an advance payment that may be refunded or credited against a holder’s U.S. federal income tax liability if the required information is supplied to the IRS.

Information Reporting . Current Treasury regulations require certain “significant” Marathon Oil stockholders (who immediately before the spin-off own 5% or more of Marathon Oil common stock) who receive MPC common stock pursuant to the spin-off to attach to such stockholder’s U.S. federal income tax return for the year in which the spin-off occurs a detailed statement setting forth such data as may be appropriate in order to show the applicability to the spin-off of Section 355 of the Code. Marathon Oil will provide appropriate information to allow this requirement to be met.

Material U.S. Federal Income Tax Consequences of the Spin-Off to Non-U.S. Holders

Distribution of MPC Stock . Provided that the distribution of shares of our common stock in the spin-off qualifies as a tax-free distribution for U.S. federal income tax purposes, Non-U.S. Holders receiving stock in the spin-off will not be subject to U.S. federal income tax on any gain realized on the receipt of our common stock so long as either (1) Marathon Oil is not a “United States real property holding corporation” (“USRPHC”) for U.S. federal income tax purposes on certain dates during the shorter of the five-year period ending on the distribution date or the Non-U.S. Holder’s holding period, or (2) Marathon Oil is or has been a USRPHC during the relevant period described above and we qualify as a USRPHC on a stand-alone basis immediately before and after the spin-off.

In general, either Marathon Oil or we will be a USRPHC during the relevant periods described above if 50 percent or more of the fair market value of the respective company’s assets constitute United States real property interests within the meaning of the Code. Marathon Oil does not believe that it has been or will be a USRPHC on any of the relevant dates within the five-year period ending on the distribution date. Because the determination of whether Marathon Oil is a USRPHC turns on the relative fair market value of Marathon Oil’s United States real property interests and its other assets, and because the USRPHC rules are complex, Marathon Oil can give no assurance that it was not and is not a USRPHC for purposes of the Code. Even if Marathon Oil was treated as a USRPHC, however, we believe that we may be a USRPHC on a stand-alone basis immediately before and after the spin-off. In such case, the applicable Treasury regulations provide that Non-U.S. Holders would not be subject to U.S. federal income taxation as a result of their participation in the spin-off, so long as the Non-U.S. Holders meet certain other procedural and substantive requirements described in such Treasury regulations. If we are a USRPHC immediately after the spin-off, a future sale or other disposition of our stock by a greater than five percent beneficial owner may be subject to U.S. tax. Non-U.S. Holders should consult their tax advisers to determine if they are more than five percent beneficial owners of Marathon Oil’s common stock under applicable rules of the Code that require both actual and constructive ownership to be taken into account.

 

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Finally, even if Marathon Oil were treated as a USRPHC but we were not a USRPHC on a stand-alone basis, a Non-U.S. Holder would not be subject to U.S. federal income taxation upon the receipt of our stock pursuant to the spin-off if Marathon Oil common stock is considered regularly traded on an established securities market and the Non-U.S. Holder beneficially owns five percent or less of Marathon Oil’s common stock at any time during the shorter of the five-year period ending on the distribution date or the Non-U.S. Holder’s holding period, taking into account both direct and constructive ownership under the applicable ownership attribution rules of the Code. Marathon Oil believes that its common stock has been and is regularly traded on an established securities market for U.S. federal income tax purposes. Any Non-U.S. Holder that beneficially owns more than five percent of Marathon Oil common stock under the rules described above that receives our common stock in a case where Marathon Oil is treated as USRPHC and we are not a USRPHC on a stand-alone basis may be subject to U.S. federal income tax on a portion of any gain realized with respect to its existing Marathon Oil common stock as a result of participating in the spin-off. Non-U.S. Holders should consult their tax advisers to determine if they are more than five percent beneficial owners of Marathon Oil’s common stock under the rules described above and whether any other exception to U.S. federal income tax might apply.

If the distribution of shares of MPC common stock in the spin-off were not to qualify as a tax-free distribution for U.S. federal income tax purposes, then each Non-U.S. Holder receiving shares of MPC common stock in the spin-off would be subject to U.S. federal income tax at a rate of 30 percent of the gross amount of any such taxable distribution that is treated as a dividend, unless: (1) such dividend was effectively connected with the conduct of a trade or business, or, if an income tax treaty applies, is attributable to a permanent establishment, in which case regular graduated federal income tax rates would apply, and, in the case of a corporate Non-U.S. Holder, a branch profits tax may apply, as described below; (2) the Non-U.S. Holder is entitled to reduced tax rates with respect to dividends pursuant to an applicable income tax treaty; or (3) the Non-U.S. Holder is an individual subject to tax pursuant to the provisions of U.S. tax law applicable to United States expatriates. Marathon Oil may be required to withhold 30 percent of any taxable distribution of MPC common stock treated as a dividend to satisfy the Non-U.S. Holder’s U.S. federal income tax liability unless the Non-U.S. Holder provides Marathon Oil with an appropriate IRS Form (or Forms) W-8 to claim an exemption from or reduction in the rate of withholding under one of the exceptions enumerated above.

As discussed above under “—Material U.S. Federal Income Tax Consequences of the Spin-Off to U.S. Holders—Tax-Free Status of Spin-Off,” a distribution of MPC common stock in the spin-off that is not tax-free under Section 355 of the Code could also be treated as a nontaxable return of capital or may trigger capital gain for U.S. federal income tax purposes. A distribution of MPC common stock that is treated as a nontaxable return of capital is generally not subject to U.S. income or withholding tax so long as the common stock of Marathon Oil is regularly traded on an established securities market, which Marathon Oil believes to be the case, and the Non-U.S. Holder does not beneficially own more than five percent of Marathon Oil’s common stock, taking into account the attribution rules under the Code described above. A distribution of MPC common stock triggering capital gain is generally not subject to U.S. federal income taxation subject to the same exceptions described below under “—Cash In Lieu of Fractional Shares,” and is generally not subject to U.S. withholding tax subject to the same exception for a nontaxable return of capital.

Cash In Lieu of Fractional Shares . A Non-U.S. Holder generally will not be subject to regular U.S. federal income or withholding tax on gain realized on the receipt of cash in lieu of fractional shares in the spin-off, unless:

 

  (1) the gain is effectively connected with a United States trade or business of the Non-U.S. Holder (or, if an income tax treaty applies, attributable to a permanent establishment in the United States maintained by that Non-U.S. Holder);

 

  (2) the Non-U.S. Holder is an individual who is present in the United States for a period or periods aggregating 183 days or more during the taxable year in which the spin-off occurs and certain other conditions are met;

 

  (3) the Non-U.S. Holder is an individual subject to tax pursuant to the provisions of United States tax law applicable to United States expatriates; or

 

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  (4) Marathon Oil is, or has been on certain dates during the shorter of the five-year period ending on the distribution date and such Non-U.S. Holder’s holding period in Marathon Oil common stock, a USRPHC as defined above. As discussed above, Marathon Oil does not believe that it has been or will be a USRPHC during the relevant period, but Marathon Oil can give no assurance with respect to its status as a USRPHC. Even if Marathon Oil were a USRPHC, however, Non-U.S. Holders would be subject to U.S. federal income taxation only if (a) Marathon Oil’s common stock were not regularly traded on an established securities market (which we do not believe to be the case), or (b) if Marathon Oil’s common stock were regularly traded on an established securities market, the Non-U.S. Holder beneficially owned more than five percent of Marathon Oil’s common stock at any time during the shorter of the five-year period ending on the distribution date or the Non-U.S. Holder’s holding period, taking into account both direct and constructive ownership under the applicable ownership attribution rules of the Code.

Gains realized by a Non-U.S. Holder described in clause (1) above that are effectively connected with the conduct of a trade or business, or, if an income tax treaty applies, are attributable to a permanent establishment, as defined therein, within the United States will generally be taxed on a net income basis, that is, after allowance for applicable deductions, at the graduated rates that are applicable to United States persons. In the case of a Non-U.S. Holder that is a corporation, such income may also be subject to the U.S. federal branch profits tax, which is generally imposed on a foreign corporation upon the deemed repatriation from the United States of effectively connected earnings and profits, at a 30 percent rate, unless the rate is reduced or eliminated by an applicable income tax treaty and the Non-U.S. Holder is a qualified resident of the treaty country.

Gains realized by a Non-U.S. Holder described in clause (2) above generally will be subject to a 30 percent tax on the gain realized from the receipt of cash in lieu of fractional shares, with such gains eligible to be offset by certain U.S.-source capital losses recognized in the same taxable year of the spin-off.

Gains realized described in clause (4) above by any Non-U.S. Holder that is a more than five percent beneficial owner of Marathon Oil common stock as described above in a case where Marathon Oil is treated as a USRPHC may be subject to U.S. federal income tax. Non-U.S. Holders in such case should consult their tax advisors regarding the determination of the amount of gain (if any) that would be subject to U.S. federal income tax. Non-U.S. Holders in such case should generally not be subject to withholding tax so long as the common stock of Marathon Oil is regularly traded on an established securities market (which we believe to be the case).

Information Reporting and Backup Withholding . Payments made to Non-U.S. Holders in the spin-off may be subject to information reporting and backup withholding. Non-U.S. Holders generally may avoid backup withholding by furnishing a properly executed IRS Form W-8BEN (or other applicable IRS Form W-8) certifying the Non-U.S. Holder’s non-U.S. status or by otherwise establishing an exemption. Backup withholding is not an additional tax. Rather, Non-U.S. Holders may use amounts withheld as a credit against their U.S. federal income tax liability or may claim a refund of any excess amounts withheld by timely and duly filing a claim for refund with the IRS.

Other Tax Consequences of the Spin-Off

Certain Non-U.S. Holders may be subject to tax on the spin-off in jurisdictions other than the U.S. notwithstanding that the distribution of shares of MPC common stock in the spin-off is not taxable under U.S. federal income tax law. In some jurisdictions, this may be the case even if a sale of shares may be subject to little or no tax in that jurisdiction. It is important that you consult your own tax advisor regarding the particular consequences of the spin-off to you, including the applicability of any U.S. federal, state and local and foreign tax laws.

 

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Market for Our Common Stock

There is currently no public market for our common stock. We have requested to have our common stock approved for listing on the NYSE under the symbol “MPC.” We anticipate that trading of our common stock will commence on a when-issued basis shortly before the record date. When-issued trading refers to a sale or purchase made conditionally because the security has been authorized but not yet issued. On the first trading day following the distribution date, when-issued trading with respect to our common stock will end and regular way trading will begin. Regular way trading refers to trading after a security has been issued and typically involves a transaction that settles on the third full business day following the date of the transaction. We cannot predict what the trading prices for our common stock will be before or after the distribution date. See “Risk Factors—Risks Relating to Ownership of Our Common Stock.” In addition, we cannot predict any change that may occur in the trading price of Marathon Oil’s common stock as a result of the spin-off.

Trading of Marathon Oil Common Stock After the Record Date and Prior to the Distribution

Beginning on or shortly before the record date and through the distribution date, there will be two concurrent markets in which to trade Marathon Oil common stock: a regular way market and an ex-distribution market. Shares of Marathon Oil common stock that trade in the regular way market will trade with an entitlement to shares of our common stock distributed in connection with the spin-off. Shares that trade in the ex-distribution market will trade without an entitlement to shares of our common stock distributed in connection with the spin-off. Therefore, if you owned shares of Marathon Oil common stock at 5:00 p.m., New York City time, on the record date and sell those shares in the regular way market on or prior to the distribution date, you also will be selling your right to receive the shares of our common stock that would have been distributed to you in connection with the spin-off. If you sell those shares of Marathon Oil common stock in the ex-distribution market prior to or on the distribution date, you will still receive the shares of our common stock that were to be distributed to you in connection with the spin-off as a result of your ownership of the shares of Marathon Oil common stock.

Spin-Off Conditions and Termination

We expect that the spin-off will be effective on [                    ] , 2011, provided that, among other things:

 

   

the SEC has declared effective our registration statement on Form 10, of which this information statement is a part, under the Exchange Act, with no stop order in effect with respect to the Form 10, and this information statement shall have been mailed to Marathon Oil’s stockholders;

 

   

the actions and filings necessary under securities and blue sky laws of the states of the United States and any comparable laws under any foreign jurisdictions shall have been taken and become effective;

 

   

no order, injunction, decree or regulation issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the spin-off shall be in effect and no other event outside Marathon Oil’s control shall have occurred or failed to occur that prevents the consummation of the spin-off;

 

   

our common stock shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance;

 

   

the private letter ruling Marathon Oil has requested from the IRS with respect to the tax treatment of the spin-off shall have been received and shall not have been revoked or modified by the IRS in any material respect and Marathon Oil shall have received an opinion from its tax counsel regarding the tax-free status of the spin-off and certain internal restructuring transactions as of the distribution date (see “—Material U.S. Federal Income Tax Consequences of the Spin-Off” for more information regarding the requested private letter ruling and opinion of tax counsel);

 

   

all material government approvals and material consents necessary to consummate the spin-off shall have been received and continue to be in full force and effect;

 

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an independent firm acceptable to Marathon Oil, in its sole and absolute discretion, shall have delivered one or more opinions to the board of directors of each of Marathon Oil and MPC confirming, among other things, the solvency of MPC and Marathon Oil, which opinions will be in form and substance satisfactory to Marathon Oil, in its sole and absolute discretion, and shall not have been withdrawn or rescinded;

 

   

Marathon Oil and MPC shall have each received credit ratings from credit rating agencies that are satisfactory to Marathon Oil in its sole and absolute discretion; and

 

   

no other events or developments shall have occurred that, in the judgment of the board of directors of Marathon Oil, in its sole and absolute discretion, would result in the spin-off having a material adverse effect on Marathon Oil or its stockholders.

Marathon Oil may waive one or more of these conditions in its sole and absolute discretion, and the determination by Marathon Oil regarding the satisfaction of these conditions will be conclusive. The fulfillment of these conditions will not create any obligation on Marathon Oil’s part to effect the distribution, and Marathon Oil has reserved the right to amend, modify or abandon any and all terms of the distribution and the related transactions at any time prior to the distribution date.

Reason for Furnishing this Information Statement

This information statement is being furnished solely to provide information to Marathon Oil stockholders who will receive shares of MPC common stock in the spin-off. It is not to be construed as an inducement or encouragement to buy or sell any of our securities. We believe that the information contained in this information statement is accurate as of the date set forth on the cover. Changes may occur after that date and neither Marathon Oil nor we undertake any obligation to update the information, except to the extent applicable securities laws require us to do so.

 

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CAPITALIZATION

The following table sets forth (i) our historical capitalization as of December 31, 2010, and (ii) our adjusted capitalization assuming the spin-off, as discussed in “The Spin-Off,” was effective December 31, 2010. The table should be read in conjunction with our historical combined financial statements, including the related notes, and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”

 

     December 31,  

(In millions)

   2010     2010  
     Actual     As Adjusted  

Debt Outstanding

    

Long-term debt, including capitalized leases(1)

   $ 279      $ 3,268   

Long-term debt payable to parent company and subsidiaries(2)

     3,618        —     
                

Total debt

     3,897        3,268   

Net Investment/Stockholders’ Equity

    

Common stock

     —          4   

Additional paid-in capital

     —          7,763   

Net investment

     8,867        —     

Accumulated other comprehensive loss

     (623     (623
                

Total net investment/stockholders’ equity

     8,244        7,144   
                

Total Capitalization

   $ 12,141      $ 10,412   
                

 

(1) Includes amounts due within one year.
(2) Includes amounts due within one year and debt owed to Marathon Oil which is expected to be repaid prior to the spin-off.

 

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DIVIDEND POLICY

We intend to declare and pay dividends on our common stock at the initial rate of $0.20 per share per quarter, or $0.80 per share on an annualized basis. Payment of future cash dividends will be at the discretion of our board of directors in accordance with applicable law after taking into account various factors, including our financial condition, earnings, capital requirements, legal requirements, regulatory constraints, industry practice and any other factors that our board of directors believes are relevant. Because we are a holding company, our principal sources of funds are from the payment of dividends and repayment of debt from our subsidiaries. Our principal subsidiaries currently are not limited by long-term debt or other agreements in their ability to pay cash dividends or make other distributions with respect to their common stock. For a discussion of our credit agreement covenants, please see “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources.”

 

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SELECTED HISTORICAL COMBINED FINANCIAL DATA

The following table presents our selected historical combined financial information. The historical combined financial information as of and for the years ended December 31, 2010, 2009 and 2008 is derived from our audited combined financial statements included in this information statement. The historical combined financial information as of and for the years ended December 31, 2007 and 2006 is derived from our unaudited combined financial statements not included in this information statement.

 

    Year Ended December 31,  

(In millions)

  2010     2009     2008     2007     2006  

Combined Statements of Income Data

         

Revenues

  $ 62,487      $ 45,530      $ 64,939      $ 55,004      $ 55,722   

Income from operations

    1,011        654        1,855        3,261        4,413   

Net income

    623        449        1,215        2,262        2,918   

Combined Statements of Cash Flows Data

         

Additions to property, plant and equipment

    (1,217     (2,891     (2,787     (1,403     (916

Contributions from (distributions to) parent company

    (1,330     207        (151     (7,454     3   
    December 31,  

(In millions)

  2010     2009     2008     2007     2006  

Combined Balance Sheet Data

         

Total assets

  $ 23,232      $ 21,254      $ 18,177      $ 17,746      $ 20,739   

Long-term debt, including capitalized leases(1)

    279        254        182        104        58   

Long-term debt payable to parent company and subsidiaries(2)

    3,618        2,358        2,343        280        3   

 

(1) Includes amounts due within one year.
(2) Includes amounts due within one year and debt owed to Marathon Oil which is expected to be repaid prior to the spin-off.

 

 

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UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL DATA

The unaudited pro forma condensed combined financial data of the Refining, Marketing & Transportation Business of Marathon Oil Corporation (the “RM&T Business”) presented below have been derived from our historical combined financial statements included in this information statement. The pro forma adjustments give effect to the separation of Marathon Oil’s refining, marketing and transportation businesses into an independent publicly traded company in the spin-off. The unaudited pro forma condensed combined financial data should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our historical combined financial statements and the notes to those statements included in this information statement.

The unaudited pro forma condensed combined statement of income for the year ended December 31, 2010 has been prepared as though the spin-off occurred as of January 1, 2010. The unaudited pro forma condensed combined balance sheet at December 31, 2010 has been prepared as though the spin-off occurred on December 31, 2010. The pro forma adjustments are based on available information and assumptions that our management believes are reasonable; however, such adjustments are subject to change as the costs of operating as a stand-alone company are determined. In addition, such adjustments are estimates and may not prove to be accurate.

The pro forma adjustments include, among other things, the following items:

 

   

The planned distribution of approximately 355 million shares of our common stock to Marathon Oil stockholders.

 

   

The incurrence of $3.0 billion of indebtedness through MPC’s issuance of senior notes in February 2011 in anticipation of the spin-off.

 

   

The repayment to Marathon Oil of approximately $3.6 billion of outstanding debt.

 

   

The cash distribution of approximately $1.1 billion to Marathon Oil.

 

   

The redemption of our investments in the preferred stock of PFD, a subsidiary of Marathon Oil, that we hold.

 

   

Adjustments for certain Marathon Oil liabilities which we will retain subsequent to the spin-off.

Our unaudited pro forma condensed combined statement of income does not include adjustments for all of the costs of operating as a stand-alone company, including possible higher information technology, tax, accounting, treasury, investor relations, insurance and other expenses related to being a stand-alone company. Such possible increased costs are not included in the unaudited pro forma condensed combined financial data, as their impact is not factually supportable. The unaudited pro forma condensed combined statement of income includes the financial results of the Northern-Tier Assets until December 1, 2010.

The unaudited pro forma condensed combined financial data are for illustrative purposes only and do not reflect what our financial position and results of operations would have been had the spin-off occurred on the dates indicated and are not necessarily indicative of our future financial position and future results of operations.

The unaudited pro forma condensed combined financial data constitute forward-looking information and are subject to certain risks and uncertainties that could cause actual results to differ materially from those anticipated. See “Cautionary Statement Concerning Forward-Looking Statements” in this information statement.

 

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REFINING, MARKETING & TRANSPORTATION BUSINESS OF MARATHON OIL CORPORATION

Unaudited Pro Forma Condensed Combined Statement of Income

Year Ended December 31, 2010

 

(In millions, except per share amounts)

   RM&T Business
Year Ended
December 31, 2010
(As reported)
     Pro Forma
Adjustments
    Pro Forma  

Revenues and other income:

       

Sales and other operating revenues (including consumer excise taxes)

   $ 62,387       $ 39 (a)    $ 62,426   

Sales to related parties

     100         (39) (a)      61   

Income from equity method investments

     70         —          70   

Net gain on disposal of assets

     11         —          11   

Other income

     37         —          37   
                         

Total revenues and other income

     62,605         —          62,605   
                         

Costs and expenses:

       

Cost of revenues (excludes items below)

     51,685         2,287 (a)      53,972   

Purchases from related parties

     2,593         (2,287) (a)      306   

Consumer excise taxes

     5,208         —          5,208   

Depreciation and amortization

     941         —          941   

Selling, general and administrative expenses

     920         —          920   

Other taxes

     247         —          247   
                         

Total costs and expenses

     61,594         —          61,594   
                         

Income from operations

     1,011         —          1,011   

Related party net interest and other financial income

     24         (24) (b)      —     

Net interest and other financial income (costs)

     (12)         (91) (c)      (103)   
                         

Income before income taxes

     1,023         (115)        908   

Provision for income taxes

     400         (37) (d)      363   
                         

Net income

   $ 623       $ (78)      $ 545   
                         

Pro forma earnings per share:(e)

       

Basic

        $ 1.54   

Diluted

        $ 1.53   

Pro forma shares outstanding:(e)

       

Basic

          355   

Diluted

          356   

 

See Notes to Unaudited Pro Forma Condensed Combined Financial Data

 

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REFINING, MARKETING & TRANSPORTATION BUSINESS OF MARATHON OIL CORPORATION

Unaudited Pro Forma Condensed Combined Balance Sheet

As of December 31, 2010

 

(In millions)

   RM&T Business
As of December 31, 2010
(As reported)
    Pro Forma
Adjustments
    Pro Forma  

Assets

      

Current assets:

      

Cash and cash equivalents

   $ 118      $ 632   (f)    $ 750   

Related party debt securities

     2,404        (2,404 ) (f)      —     

Receivables, net

     4,393        4   (a)      4,397   

Receivables from related parties

     5        (4 ) (a)      1   

Inventories

     3,071        —          3,071   

Other current assets

     65        —          65   
                        

Total current assets

     10,056        (1,772     8,284   

Equity method investments

     312        —          312   

Property, plant and equipment, net

     11,724        —          11,724   

Goodwill

     837        —          837   

Other noncurrent assets

     303        63 (g)      366   
                        

Total assets

   $ 23,232      $ (1,709   $ 21,523   
                        

Liabilities

      

Current liabilities:

      

Accounts payable

   $ 6,453      $ 329   (a)    $ 6,782   

Payables to related parties

     341        (329 ) (a)      12   

Payroll and benefits payable

     266        —          266   

Consumer excise taxes payable

     286        —          286   

Deferred income taxes

     440        —          440   

Long-term debt payable within one year to parent company and subsidiaries

     655        (655 ) (f)      —     

Long-term debt due within one year

     11        —          11   

Other current liabilities

     168        —          168   
                        

Total current liabilities

     8,620        (655     7,965   

Long-term debt payable to parent company and subsidiaries

     2,963        (2,963 ) (f)      —     

Long-term debt

     268        2,989   (f)      3,257   

Deferred income taxes

     1,367        —          1,367   

Defined benefit postretirement plan obligations

     1,493        —          1,493   

Deferred credits and other liabilities

     277        20   (h)      297   
                        

Total liabilities

     14,988        (609     14,379   

Commitments and contingencies

      

Net Investment/Stockholders’ Equity

      

Common stock

     —          4   (i)      4   

Additional paid-in capital

     —          7,763   (j)      7,763   

Net investment

     8,867        (8,867 ) (j)      —     

Accumulated other comprehensive loss

     (623     —          (623
                        

Total net investment/stockholders’ equity

     8,244        (1,100     7,144   
                        

Total liabilities and net investment/stockholders’ equity

   $ 23,232      $ (1,709   $ 21,523   
                        

See Notes to Unaudited Pro Forma Condensed Combined Financial Data

 

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REFINING, MARKETING & TRANSPORTATION BUSINESS

OF MARATHON OIL CORPORATION

Notes to Unaudited Pro Forma Condensed Combined Financial Data

 

(a) Reflects the reclassification of activity and balances with Marathon Oil from related party to third-party.
(b) Reflects the elimination of all related party net interest and other financial income, based on the redemption by the RM&T Business of all its shares of preferred stock of PFD, assuming a January 1, 2010 effective date.
(c) Reflects adjustments to net interest and other financial income (costs) resulting from the incurrence of $3.0 billion of indebtedness in February, 2011, as follows (in millions):

 

Interest expense on $3.0 billion of newly incurred indebtedness

   $ (160

Amortization of debt issuance costs (see note (g))

     (11

Commitment fee on revolving credit facility

     (6

Historical interest expense on related party debt, which has been capitalized

     66   

Additional interest expense capitalized

     20   
        

Total pro forma adjustment to interest income (costs), net

   $ (91
        

Pro forma interest expense was calculated based on a blended interest rate of 5.32%, which includes amortization of an $11 million original issue discount on the indebtedness. Interest expense also includes amortization on approximately $63 million of debt issuance costs related to the $3.0 billion debt incurrence and our new $2.0 billion revolving credit facility. Such costs are amortized over the terms of the associated debt. Interest expense also includes a commitment fee on the new revolving credit facility. The calculation of interest expense assumes constant debt levels throughout the period presented.

(d) Represents the tax effect of pro forma adjustments to income before income taxes using a statutory tax rate of 38% for the year ended December 31, 2010. Also represents the elimination of a tax deduction associated with dividend income received from PFD, (see note (b) above). The effective tax rate of the RM&T Business could be different (either higher or lower) depending on activities subsequent to the spin-off.
(e) The calculation of pro forma basic earnings per share and shares outstanding is based on the number of shares of Marathon Oil common stock outstanding as of January 31, 2011, adjusted for the distribution ratio of one share of our common stock for every two shares of Marathon Oil common stock outstanding. The calculation of pro forma diluted earnings per share and shares outstanding for the periods presented is based on the number of shares of Marathon Oil common stock outstanding and diluted shares of common stock outstanding as of January 31, 2011, adjusted for the same distribution ratio. This calculation may not be indicative of the dilutive effect that will actually result from the replacement of Marathon Oil stock-based awards held by our employees and employees of Marathon Oil or the grant of new stock-based awards. The number of dilutive shares of our common stock that will result from Marathon Oil stock options and restricted stock awards held by our employees will not be determined until after the first trading day following the distribution date for the spin-off.
(f) Represents adjustments to cash and cash equivalents, as follows (in millions):

 

Cash received from incurrence of new debt, net of discount and debt issuance costs (see notes (c) and (g))

   $ 2,926   

Cash received from redemption of investment in PFD preferred stock

     2,404   

Cash paid to Marathon Oil to settle debt payable to Marathon Oil and subsidiaries

     (3,618

Cash distribution to Marathon Oil

    
(1,080

        

Cash pro forma adjustment

   $ 632   
        

 

(g) Represents new debt issuance costs of $63 million related to the incurrence of $3.0 billion of indebtedness and our new $2.0 billion revolving credit facility.
(h)

Represents contingent liabilities related to taxes ($17 million) for which we have agreed to indemnify Marathon Oil subsequent to the spin-off and a liability ($3 million) for payment of performance units to

 

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REFINING, MARKETING & TRANSPORTATION BUSINESS

OF MARATHON OIL CORPORATION

Notes to Unaudited Pro Forma Condensed Combined Financial Data—(Continued)

 

 

officers based on value at the assumed effective date for the spin-off. For additional information, see “Relationship with Marathon Oil after the Spin-off—Agreements between Marathon Oil and Us—Tax Sharing Agreement” and “—Treatment of Performance Units.”

(i) Represents the distribution of approximately 355 million shares of our common stock at a par value of $.01 per share to holders of Marathon Oil common stock.
(j) Represents the elimination of Marathon Oil’s net investment in us and adjustments to additional paid-in capital resulting from the following (in millions):

 

Reclassification of Marathon Oil’s net investment in us

   $ 8,867   

New liabilities recorded on our books (see note (h))

     (20

Distribution to Marathon Oil (see note (f))

     (1,080
        

Total stockholders’ equity

     7,767   

Less: common stock

     (4
        

Total additional paid-in capital

   $ 7,763   
        

 

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MANAGEMENT’S DISCUSSION AND ANALYSIS OF

FINANCIAL CONDITION AND RESULTS OF OPERATIONS

This Management’s Discussion and Analysis of Financial Condition and Results of Operations should be read in conjunction with the information under the headings “Risk Factors,” “Selected Historical Combined Financial Data,” and “Business” and the combined financial statements and accompanying footnotes included in this information statement.

This Management’s Discussion and Analysis of Financial Condition and Results of Operations includes various forward-looking statements concerning trends or events potentially affecting our business. You can identify our forward-looking statements by words such as “anticipate,” “believe,” “estimate,” “expect,” “forecast,” “goal,” “intend,” “plan,” “predict,” “project,” “seek,” “target,” “could,” “may,” “should” or “would” or other similar expressions that convey the uncertainty of future events or outcomes. When considering these forward-looking statements, you should keep in mind the risk factors and other cautionary statements contained in this information statement. See “Cautionary Statement Concerning Forward-Looking Statements” and “Risk Factors.”

The Separation and Spin-off

On January 13, 2011, Marathon Oil announced that its board of directors had approved moving forward with plans to separate its RM&T Business into an independent, publicly traded company, through a spin-off that is expected to be completed in accordance with a separation and distribution agreement between Marathon Oil and MPC. The spin-off is generally intended to be tax free to the stockholders and to Marathon Oil and MPC. Marathon Oil intends to distribute, on a pro rata basis, shares of MPC common stock to the Marathon Oil stockholders as of the record date for the spin-off. Upon completion of the spin-off, Marathon Oil and MPC will each be independent, publicly traded companies and will have separate public ownership, boards of directors and management. The spin-off is, among other things, subject to final approval by Marathon Oil’s board of directors, receipt of a private letter ruling from the IRS and an opinion of tax counsel, in each case with respect to the tax-free nature of the spin-off. MPC was incorporated in Delaware as a wholly owned subsidiary of Marathon Oil on November 9, 2009. See the discussion under the heading “The Spin-Off” included in this information statement for further details.

The combined financial statements included in this information statement were prepared in connection with the spin-off and reflect the combined historical results of operations, financial position and cash flows of the Marathon Oil subsidiaries that operate its RM&T Business, as if such businesses had been combined for all periods presented. All significant intercompany transactions and accounts within the RM&T Business have been eliminated. The assets and liabilities in the combined financial statements included in this information statement have been reflected on a historical basis, as immediately prior to the spin-off all of the assets and liabilities presented are wholly owned by Marathon Oil and are being transferred within the Marathon Oil consolidated group. The combined statements of income also include expense allocations for certain corporate functions historically performed by Marathon Oil, including allocations of general corporate expenses related to executive oversight, accounting, treasury, tax, legal, procurement and information technology. These allocations are based primarily on specific identification, headcount or computer utilization. Our management believes the assumptions underlying the combined financial statements, including the assumptions regarding allocating general corporate expenses from Marathon Oil, are reasonable. However, the combined financial statements may not include all of the actual expenses that would have been incurred had we been a stand-alone company during the periods presented and may not reflect our combined results of operations, financial position and cash flows had we been a stand-alone company during the periods presented. Actual costs that would have been incurred if we had been a stand-alone company would depend on multiple factors, including organizational structure and strategic decisions made in various areas, including information technology and infrastructure.

 

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Segments

Our operations consist of three reportable operating segments: Refining & Marketing; Speedway; and Pipeline Transportation. Each of these segments is organized and managed based upon the nature of the products and services they offer.

 

   

Refining & Marketing—refines crude oil and other feedstocks at our six refineries in the Gulf Coast and Midwest regions of the United States and distributes refined products through various means, including barges, terminals and trucks that we own or operate. We sell refined products to wholesale marketing customers domestically and internationally, to buyers on the spot market, to our Speedway business segment and to dealers and jobbers who operate Marathon ® -branded retail outlets;

 

   

Speedway—sells transportation fuels and convenience products in the retail market, primarily in the Midwest, through Speedway ® -branded convenience stores; and

 

   

Pipeline Transportation—transports crude oil and other feedstocks to our refineries and other locations, delivers refined products to wholesale and retail market areas and owns, among other transportation-related assets, a majority interest in LOOP LLC, which is the owner and operator of the only U.S. deepwater oil port.

On December 1, 2010, we completed the sale of most of our Minnesota assets. These assets included the 74,000 barrel-per-day St. Paul Park refinery and associated terminals, 166 SuperAmerica ® -branded convenience stores (including six stores in Wisconsin) along with the SuperMom’s ® bakery (a baked goods supply operation) and certain associated trademarks, SuperAmerica Franchising LLC, interests in pipeline assets in Minnesota and associated inventories. We refer to these assets as the “Northern-Tier Assets.” The transaction value was approximately $935 million, which included approximately $330 million for inventories. We received $740 million in cash, net of closing costs but prior to post-closing adjustments. The terms of the sale also included (1) a preferred stock interest in the buyer with a stated value of $80 million, (2) a maximum $125 million earnout provision payable to us over eight years, (3) a maximum $60 million of margin support payable to the buyer over two years, up to a maximum of $30 million per year, (4) a receivable from the buyer of $107 million payable in the first quarter of 2011, and (5) guarantees with a maximum exposure of $11 million made by us on behalf of and to the buyer related to a limited number of convenience store sites. As a result of this continuing involvement, a gain on sale of $89 million was deferred. The timing and amount of deferred gain ultimately recognized in the income statement is subject to the resolution of our continuing involvement.

Refining & Marketing

Refining & Marketing segment income from operations depends largely on our refining and marketing gross margin and refinery throughputs.

Our refining and marketing gross margin is the difference between the prices of refined products sold and the costs of crude oil and other charge and blendstocks refined, including the costs to transport these inputs to our refineries, the costs of purchased products and manufacturing expenses, including depreciation. The crack spread is a measure of the difference between market prices for refined products and crude oil, commonly used by the industry as a proxy for the refining margin. Crack spreads can fluctuate significantly, particularly when prices of refined products do not move in the same relationship as the cost of crude oil. As a performance benchmark and a comparison with other industry participants, we calculate Midwest (Chicago) and U.S. Gulf Coast crack spreads that we feel most closely track our operations and slate of products. Posted Light Louisiana Sweet (“LLS”) prices and a 6-3-2-1 ratio of products (6 barrels of crude oil producing 3 barrels of gasoline, 2 barrels of distillate and 1 barrel of residual fuel) are used for these crack-spread calculations.

Our refineries can process significant amounts of sour crude oil, which typically can be purchased at a discount to sweet crude oil. The amount of this discount, the sweet/sour differential, can vary significantly, causing our refining and marketing gross margin to differ from crack spreads based on sweet crude. In general, a larger sweet/sour differential will enhance our refining and marketing gross margin. In 2010, the sweet/sour differential

 

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widened 32 percent from 2009 due to a variety of worldwide economic and petroleum industry related factors, including higher hydrocarbon demand. The sweet/sour differential widening contributed to an increase in our 2010 refining and marketing gross margin compared to 2009. In 2009, the sweet/sour differential narrowed, due to a variety of worldwide economic and petroleum industry related factors, primarily related to lower hydrocarbon demand. Sour crude accounted for 54 percent, 50 percent and 52 percent of our crude oil processed in 2010, 2009 and 2008, respectively.

The following table lists calculated average crack spreads for the Midwest (Chicago) and Gulf Coast markets and the sweet/sour differential for 2010, 2009 and 2008.

 

(Dollars per barrel)

   2010      2009      2008  

Chicago LLS 6-3-2-1

   $ 3.04       $ 3.52       $ 3.27   

U.S. Gulf Coast LLS 6-3-2-1

   $ 2.14       $ 2.54       $ 2.45   

Sweet/Sour differential(1)

   $ 7.71       $ 5.82       $ 11.99   

 

(1) Calculated using the following mix of crude types as compared to LLS: 15% Arab Light, 20% Kuwait, 10% Maya, 15% Western Canadian Select and 40% Mars.

In addition to the market changes indicated by the crack spreads and sweet/sour differential, our refining and marketing gross margin is impacted by factors such as:

 

   

the types of crude oil and other charge and blendstocks processed;

 

   

the selling prices realized for refined products;

 

   

the impact of commodity derivative instruments used to manage price risk;

 

   

the cost of products purchased for resale; and

 

   

changes in manufacturing costs, which include depreciation.

Manufacturing costs are primarily driven by the cost of energy used by our refineries and the level of maintenance costs. Planned maintenance activities, or turnarounds, requiring temporary shutdown of certain refinery operating units, are periodically performed at each refinery. Planned turnaround and major maintenance activities were completed at our Garyville, Catlettsburg, Detroit, Texas City and Robinson refineries in 2010. Turnarounds and major maintenance activities were completed at our Catlettsburg, Robinson and Garyville refineries in 2009 and at our Catlettsburg, Garyville, Robinson and Canton refineries in 2008.

As of December 31, 2010, we completed full integration of the refinery units added as part of the Garyville major expansion project, which was completed at the end of 2009, and realized an increase in our crude oil refining capacity at this refinery from 436 mbpd to 464 mbpd.

Also, as of December 31, 2010, we progressed construction of the Detroit refinery heavy oil upgrading and expansion project to approximately 50 percent, with an expected completion in the second half of 2012.

During 2010, we expanded Marathon ® brand market sales volumes by approximately 10 percent through new fuel supply agreements, including a third quarter 2010 agreement with The Pantry.

Speedway

Our retail marketing gross margin for gasoline and distillates, which is the difference between the ultimate price paid by consumers and the cost of refined products, including secondary transportation and consumer excise taxes and the cost of bankcard processing fees, impacts the Speedway segment profitability. There are numerous factors that impact gasoline and distillate demand throughout the year, including local competition,

 

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seasonal demand fluctuations, the available wholesale supply, the level of economic activity in our marketing areas and weather conditions. After decreasing in 2008 and 2009, refined product demand in the United States increased in 2010, associated with the slow economic recovery. For our marketing areas, we estimate a distillate demand increase of eight percent in 2010, while gasoline demand remained constant with 2009 levels. For 2009, we estimate gasoline demand declined by about one percent and distillate demand declined by about 12 percent from 2008 levels. Market demand declines for gasoline and distillates generally reduce the product margin we can realize. The gross margin on merchandise sold at retail outlets has been historically less volatile.

Pipeline Transportation

The profitability of our pipeline transportation operations primarily depends on tariff rates and the volumes shipped through the pipelines, with a majority of the crude oil and refined product shipments on our common carrier pipelines serving our Refining & Marketing segment. The volume of crude oil that we transport is directly affected by the supply of, and refiner demand for, crude oil in the markets served directly by our crude oil pipelines. Key factors in this supply and demand balance are the production levels of crude oil by producers, the availability and cost of alternative modes of transportation, and refinery and transportation system maintenance levels. The volume of refined products that we transport is directly affected by the production levels of, and user demand for, refined products in the markets served by our refined product pipelines. In most of our markets, demand for gasoline and distillates peaks during the summer driving season, which extends from May through September of each year, and declines during the fall and winter months. As with crude oil, other transportation alternatives and system maintenance levels influence refined product movements.

Results of Operations

Years Ended December 31, 2010 and December 31, 2009

Combined Results

Combined net income was 39 percent higher in 2010 as compared to 2009, primarily due to a higher refining and marketing gross margin.

Revenues are summarized by segment in the following table:

 

(In millions)

   2010     2009  

Refining & Marketing

   $ 57,333      $ 40,665   

Speedway

     12,494        10,838   

Pipeline Transportation

     401        381   
                

Segment revenues

     70,228        51,884   

Elimination of intersegment revenues

     (7,741     (6,354
                

Total revenues

   $ 62,487      $ 45,530   
                

Items included in both revenues and costs:

    

Consumer excise taxes

   $ 5,208      $ 4,924   

 

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Refining & Marketing segment revenues increased $16.67 billion in 2010 from 2009, consistent with relative price level changes. Our average refined product selling prices were $2.24 per gallon in 2010 as compared to $1.86 per gallon in 2009, with the higher prices in 2010 contributing about 55 percent of the increase in segment revenues. In addition, refined product sales volumes increased 15 percent in 2010, in part due to the higher production from our Garyville refinery following the completion of the major expansion project, contributing about 35 percent of the segment revenue increase. The table below shows the average refined product benchmark prices for our marketing areas.

 

(Dollars per gallon)

   2010      2009  

Chicago spot unleaded regular gasoline

   $ 2.09       $ 1.68   

Chicago spot ultra-low sulfur diesel

   $ 2.17       $ 1.66   

U.S. Gulf Coast spot unleaded regular gasoline

   $ 2.05       $ 1.64   

U.S. Gulf Coast spot ultra-low sulfur diesel

   $ 2.16       $ 1.66   

Refining & Marketing intersegment sales to our Speedway segment were $7.39 billion in 2010 as compared to $6.02 billion in 2009. Intersegment refined product sales volumes were 3.11 billion gallons in 2010 as compared to 3.03 billion gallons in 2009.

Speedway segment revenues increased $1.66 billion from 2009 to 2010, mainly due to higher gasoline and distillate prices, which increased approximately 20 percent and accounted for approximately $1.40 billion of the increase in segment revenues.

Income from equity method investments increased $40 million in 2010 from 2009, primarily due to higher earnings from our investments in crude oil pipeline companies, which increased approximately $22 million, and ethanol production facilities, which increased approximately $10 million.

Cost of revenues increased $14.68 billion, or 40 percent, in 2010 from 2009. The increase was primarily the result of higher acquisition costs for crude oil, charge and blendstocks and purchased refined products in the Refining & Marketing segment, with crude oil acquisition prices up approximately 26 percent, charge and blendstock prices up approximately 30 percent and purchased refined product prices up approximately 19 percent. These price-related impacts accounted for approximately $8.68 billion of the total increase. Volumes of purchased crude oil were 20 percent higher, which also contributed to increased costs of approximately $4.22 billion, primarily reflecting impacts of the Garyville major expansion project.

Purchases from related parties increased $1.28 billion from 2009 to 2010, primarily reflecting higher acquisition costs of crude oil from Marathon Oil, with higher crude oil volumes accounting for approximately $630 million of the increase and higher crude prices accounting for about $600 million of the increase.

Depreciation and amortization increased $271 million in 2010 from 2009, primarily related to the Garyville major expansion project, which we completed near the end of 2009.

Related party net interest and other financial income decreased $21 million in 2010 from 2009, primarily reflecting lower average balances of short-term investments in preferred stock of MOC Portfolio Delaware, Inc. (“PFD”), a subsidiary of Marathon Oil. See note 4 to the audited combined financial statements included in this information statement for further discussion of the PFD preferred stock.

Provision for income taxes increased $164 million from 2009 to 2010, primarily due to the $338 million increase in income before incomes taxes and a $26 million expense for legislative changes, which are described in note 10 to the audited combined financial statements included in this information statement. The effective income tax rate increased from 34 percent in 2009 to 39 percent in 2010, primarily due to legislative changes and a decrease in the effect of deductions for dividends received from a related party. The provision for income taxes has been computed as if we were a stand-alone company.

 

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Segment Results

Segment income from operations is summarized in the following table:

 

(In millions)

   2010     2009  

Segment income from operations

    

Refining & Marketing

   $ 800      $ 452   

Speedway

     293        212   

Pipeline Transportation

     183        172   
                

Segment income from operations

     1,276        836   

Items not allocated to segments:

    

Corporate and other unallocated items(1)

     (236     (172

Impairments(2)

     (29     (10

Net interest and other financial income(3)

     12        31   
                

Income before income taxes

   $ 1,023      $ 685   
                

 

(1) Corporate and other unallocated items consists primarily of RM&T Business corporate administrative expenses, including allocations from Marathon Oil, and costs related to certain non-operating assets.
(2) The impairment in 2010 is related to a write-down of our maleic anhydride plant. The impairment in 2009 reflects the write-down of our equity method investment in a pipeline company.
(3) Includes related party net interest and other financial income.

Refining & Marketing segment income from operations increased $348 million in 2010 from 2009, primarily due to a higher refining and marketing gross margin per gallon, which averaged 6.77 cents per gallon in 2010 compared to 5.77 cents in 2009, and accounted for approximately $240 million of the increase in segment income. The gross margin increase was primarily a result of a 32 percent widening of the sweet/sour differential, thereby decreasing the relative cost of crude processed by our refineries. The widening of the sweet/sour differential resulted from a variety of worldwide economic and petroleum industry related factors.

Also contributing to the increase in segment income were increases in our refined product sales volumes due primarily to increased refinery production, which accounted for approximately $185 million of the increase in segment income. We averaged 1,173 mbpd of crude oil throughput in 2010 and 957 mbpd in 2009. Total refinery throughputs averaged 1,335 mbpd in 2010 and 1,153 mbpd in 2009. These throughputs were higher in 2010 than in 2009, primarily due to the Garyville major expansion, partially offset by the reduction caused by the sale of the St. Paul Park refinery effective December 1, 2010. These favorable impacts to segment income were partially offset by increased manufacturing costs incurred related to the additional units at the Garyville refinery.

Included in the refining and marketing gross margin were derivative losses of $29 million in 2010 and $83 million in 2009. For a more complete explanation of our strategies to manage market risk related to commodity prices, see “Quantitative and Qualitative Disclosures about Market Risk.”

The following table includes certain key operating statistics for the Refining & Marketing segment for 2010 and 2009.

 

     2010      2009  

Refining and marketing gross margin (Dollars per
gallon)
(1)

   $ 0.0677       $ 0.0577   

Refined products sales volumes (Thousands of barrels per day) (2)

     1,573         1,365   

 

(1) Sales revenue less cost of refinery inputs, purchased products and manufacturing expenses, including depreciation.
(2) Includes intersegment sales.

 

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Speedway segment income from operations increased $81 million from 2009 to 2010, primarily due to a higher gasoline and distillates gross margin, which averaged 12.07 cents per gallon in 2010 compared to 10.30 cents per gallon in 2009.

Same-store gasoline sales volume increased 3.0 percent compared to 2009, while same-store merchandise sales increased by 4.4 percent for the same period. Speedway ® was ranked the nation’s top retail gasoline brand for the third consecutive year, according to the 2011 Harris Poll EquiTrend ® study conducted by Harris Interactive ® .

Pipeline Transportation segment income from operations increased $11 million in 2010 from 2009, primarily due to higher earnings from our investments in crude oil pipeline companies. This was partially offset by increased depreciation expense, primarily reflecting an impairment charge for the 2010 cancellation of a pipeline project associated with the Detroit refinery heavy oil upgrading and expansion project and the impact of pipeline assets associated with the Garyville major expansion project, which were placed in service near the end of 2009.

Corporate and other unallocated items reflected an increase in expenses of $64 million from 2009 to 2010, primarily due to higher benefits-related costs.

Years Ended December 31, 2009 and December 31, 2008

Combined Results

Combined net income was 63 percent lower in 2009 as compared to 2008, primarily due to a lower refining and marketing gross margin.

Revenues are summarized in the following table:

 

(In millions)

   2009     2008  

Refining & Marketing

   $ 40,665      $ 60,000   

Speedway

     10,838        13,365   

Pipeline Transportation

     381        373   
                

Segment revenues

     51,884        73,738   

Elimination of intersegment revenues

     (6,354     (8,799
                

Total revenues

   $ 45,530      $ 64,939   
                

Items included in both revenues and costs:

    

Consumer excise taxes

   $ 4,924      $ 5,065   

Refining & Marketing segment revenues decreased $19.34 billion from 2008 to 2009, consistent with relative price level changes. While our overall refined product sales volumes in 2009 were relatively unchanged compared to 2008, our average refined product selling price declined from $2.78 per gallon in 2008 to $1.86 per gallon in 2009. The level of crude oil prices has a direct influence on our refined product prices. The table below shows the average annual refined product benchmark prices for our marketing area.

 

(Dollars per gallon)

   2009      2008  

Chicago spot unleaded regular gasoline

   $ 1.68       $ 2.50   

Chicago spot ultra-low sulfur diesel

   $ 1.66       $ 2.95   

U.S. Gulf Coast spot unleaded regular gasoline

   $ 1.64       $ 2.48   

U.S. Gulf Coast spot ultra-low sulfur diesel

   $ 1.66       $ 2.93   

Refining & Marketing intersegment sales to our Speedway segment were $6.02 billion in 2009 and $8.47 billion in 2008. Intersegment refined product sales volumes were approximately 3.03 billion gallons in 2009 and 3.01 billion gallons in 2008.

 

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Speedway segment revenues decreased $2.53 billion from 2008 to 2009. This decrease was mainly due to lower gasoline and distillate prices, which accounted for a decrease of $2.80 billion, partially offset by a $271 million increase in merchandise sales.

Sales to related parties decreased $1.98 billion in 2009 from 2008, primarily as a result of refined product sales to Pilot Travel Centers LLC (“PTC”) no longer being classified as related party sales following the sale of our interest in PTC during the fourth quarter of 2008.

Income from equity method investments decreased $91 million in 2009 from 2008, primarily as a result of the sale of our equity method investment in PTC during the fourth quarter of 2008 and a $10 million impairment in 2009 of our equity method investment in Southcap Pipe Line Company, an entity engaged in crude oil transportation, partially offset by the absence of the $40 million impairment in 2008 of equity method investments in two ethanol production facilities and improved earnings generated by one of those facilities.

Net gain on disposal of assets of $152 million in 2008 included the sale of our interest in PTC.

Cost of revenues decreased $17.65 billion, or 32 percent, from 2008 to 2009. The decrease primarily resulted from lower acquisition costs of crude oil and refinery charge and blendstocks, mainly due to lower market prices. Purchased refined products also decreased, primarily reflecting lower market prices.

Purchases from related parties decreased $562 million in 2009 from 2008, primarily reflecting lower acquisition costs of crude oil and natural gas from Marathon Oil. This decrease was mainly due to a reduction in market prices, with lower crude oil prices accounting for approximately $690 million of the decline, and natural gas prices contributing approximately $260 million of the decline, partially offset by a 40 percent increase in crude oil volumes, or approximately $440 million.

Depreciation and amortization increased $64 million in 2009 from 2008. The increase in 2009 primarily reflected increased depreciation expense related to various refinery improvements, including the Garyville major expansion project and an ultra low sulfur diesel project at our Canton refinery.

Selling, general and administrative expenses decreased $119 million in 2009 from 2008. The decrease in 2009 was primarily due to lower expenses for outside professional services, including engineering and legal services, which decreased around $75 million, decreased benefits-related costs, which declined around $20 million, and lower bankcard processing fees related to Marathon ® brand sales, which declined close to $20 million, largely due to decreased refined product selling prices in 2009.

Related party net interest and other financial income increased $19 million in 2009 from 2008. The increase in 2009 primarily resulted from higher average balances of short-term investments in PFD preferred stock. See note 4 to the audited combined financial statements included in this information statement for further discussion of the PFD preferred stock.

Net interest and other financial income (costs), primarily comprised of bank fees and foreign currency exchange impacts, reflected an unfavorable change of $18 million from 2008, primarily due to foreign currency losses recorded in 2009 compared to foreign currency gains in 2008. See note 8 to the audited combined financial statements included in this information statement for further details.

Provision for income taxes decreased $434 million in 2009 from 2008, primarily due to the $1.20 billion decrease in income before income taxes. The effective income tax rate decreased from 36 percent in 2008 to 34 percent in 2009, primarily due to an increase in the effect of deductions for dividends received from a related party. The provision for income taxes has been computed as if we were a stand-alone company. See note 10 to the audited combined financial statements included in this information statement.

 

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Segment Results

Segment income for 2009 and 2008 is summarized and reconciled to income before income taxes in the following table.

 

(In millions)

   2009     2008  

Segment income from operations

    

Refining & Marketing

   $ 452      $ 1,377   

Speedway

     212        284   

Pipeline Transportation

     172        183   
                

Segment income from operations

     836        1,844   

Items not allocated to segments:

    

Corporate and other unallocated items(1)

     (172     51   

Impairments of equity method investments(2)

     (10     (40

Net interest and other financial income(3)

     31        30   
                

Income before income taxes

   $ 685      $ 1,885   
                

 

(1) Corporate and other unallocated items consists primarily of income from our 50 percent equity method investment in PTC during 2008, the gain on the sale of our interest in PTC in 2008, RM&T Business corporate administrative expenses, including allocations from Marathon Oil, and costs related to certain non-operating assets.
(2) The impairment in 2009 reflects the write-down of our equity method investment in a pipeline company. The impairment in 2008 relates to our investments in two ethanol producing facilities.
(3) Includes related party net interest and other financial income.

Refining & Marketing segment income from operations decreased $925 million, or 67 percent, from 2008 to 2009, primarily as a result of the decrease in our refining and marketing gross margin per gallon from 11.14 cents in 2008 to 5.77 cents in 2009. The gross margin decline was a result of a 52 percent narrowing of the sweet/sour differential, thereby increasing the relative cost of crude processed by our refineries. The narrowing of the sweet/sour differential resulted from a variety of worldwide economic and petroleum industry-related factors, including lower hydrocarbon demand.

Included in the refining and marketing gross margins were derivative losses of $83 million in 2009 and $87 million in 2008. For a more complete explanation of our strategies to manage market risk related to commodity prices, see “Quantitative and Qualitative Disclosures about Market Risk.”

We averaged 957 mbpd of crude oil throughput in 2009 and 944 mbpd in 2008. Total refinery throughputs averaged 1,153 mbpd in 2009 compared to 1,151 mbpd in 2008.

The following table includes certain key operating statistics for the Refining & Marketing segment for 2009 and 2008.

 

     2009      2008  

Refining and marketing gross margin (Dollars per gallon)(1)

   $ 0.0577       $ 0.1114   

Refined products sales volumes (Thousands of barrels per day)(2)

     1,365         1,339   

 

(1) Sales revenue less cost of refinery inputs, purchased products and manufacturing expenses, including depreciation.
(2) Includes intersegment sales.

 

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Speedway segment income from operations decreased $72 million from 2008 to 2009, primarily due to a lower gasoline and distillates gross margin, which decreased from 13.50 cents per gallon in 2008 to 10.30 cents per gallon in 2009 and accounted for about $100 million of the decline. This unfavorable change was partially offset by a higher merchandise margin, which increased from $716 million in 2008 to $775 million in 2009.

Pipeline Transportation segment income from operations decreased $11 million from 2008 to 2009, primarily resulting from a $14 million increase in operating expenses, partially offset by an $8 million increase in operating revenues. The increase in expenses was mainly due to increased maintenance activities.

Corporate and other unallocated items reflected an unfavorable change of $223 million from 2008 to 2009, primarily due to 2008 including equity earnings from PTC and the gain on the sale of our interest in PTC. Excluding the PTC impacts of approximately $265 million recorded in 2008, activity in 2009 was favorably impacted by a reduction in benefits-related costs.

Liquidity and Capital Resources

Cash Flows

Net cash provided from operating activities totaled $2.22 billion in 2010, compared to $2.46 billion in 2009 and $684 million in 2008. The $238 million decrease in 2010 was mainly due to a smaller cash source from working capital changes, primarily reflecting the impact of higher crude oil and refined product prices at year-end 2010 as compared to year-end 2009. The $1.77 billion increase in 2009 primarily reflected a source of cash from working capital changes, mainly due to an increase in refined product and crude oil prices at year-end 2009 as compared to year-end 2008 prices, partially offset by lower net income in 2009.

Net cash used in investing activities totaled $2.15 billion in 2010, compared to $2.64 billion in 2009 and $2.61 billion in 2008. The favorable $499 million change in 2010 from 2009 was primarily due to decreased capital spending and increased cash received from asset disposals, partially offset by net purchases of related party debt securities in 2010. With the completion of our Garyville major expansion project at the end of 2009, we have reduced capital spending in our Refining & Marketing segment while continuing to invest in the Detroit refinery heavy oil upgrading and expansion project.

The combined statements of cash flows exclude changes to the combined balance sheets that did not affect cash. A reconciliation of additions to property, plant and equipment to reported total capital expenditures follows for all years presented:

 

(In millions)

   2010     2009     2008  

Additions to property, plant and equipment

   $ 1,217      $ 2,891      $ 2,787   

Increase (decrease) in capital accruals

     (51     (312     167   
                        

Capital expenditures

   $ 1,166      $ 2,579      $ 2,954   
                        

The Detroit refinery heavy oil upgrading and expansion project was a significant part of our 2010 spending and impacted all three years, comprising approximately 41 percent, 12 percent and 13 percent (excluding capitalized interest associated with this project) of our capital spending in 2010, 2009 and 2008, respectively. The Garyville major expansion project was a major component of our 2009 and 2008 spending, accounting for approximately 57 percent and 52 percent (excluding capitalized interest associated with this project) of our capital spending in 2009 and 2008, respectively.

Disposal of assets totaled $763 million, $53 million and $669 million in 2010, 2009 and 2008. In 2010, disposal of assets primarily included proceeds from the sale of our Northern-Tier Assets. In 2008, disposal of assets included proceeds from the sale of our ownership interest in PTC. Disposals for all years included proceeds from the sale of various Speedway segment stores.

 

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Net investments in related party debt securities totaled a use of cash of $1.69 billion in 2010, a source of cash of $160 million in 2009 and a use of cash of $481 million in 2008. All such activity reflected the net cash flow from redemptions and purchases of PFD preferred stock. See note 4 to the audited combined financial statements included in this information statement for further discussion of our investments in PFD preferred stock.

Net cash used in financing activities totaled $82 million in 2010, compared with cash provided by financing activities of $209 million in 2009 and $1.91 billion in 2008.

Net borrowings under long-term debt payable to Marathon Oil and its subsidiaries were sources of cash of $1.26 billion in 2010, $15 million in 2009 and $2.06 billion in 2008. In 2010, net borrowings included $1.26 billion under the revolving credit agreement with PFD. In 2008, net borrowings included $1.31 billion under our revolving credit facility with PFD and $751 million from Marathon Oil under a loan agreement, which was used to finance a portion of our Garyville major expansion project. See note 4 to the audited combined financial statements included in this information statement for further discussion of these financing agreements.

Contributions from (distributions to) parent company totaled a net distribution of $1.33 billion in 2010, net contribution of $207 million in 2009 and a net distribution of $151 million in 2008. The net distribution in 2010 was primarily $1.48 billion in cash distributions paid to Marathon Oil, partially offset by current income taxes it incurred on our behalf. The net contribution in 2009 was primarily capitalized interest and corporate overhead cost allocations incurred by Marathon Oil on our behalf. The net distribution in 2008 was primarily a $1.0 billion cash distribution paid to Marathon Oil, partially offset by $770 million current income taxes it incurred on our behalf.

Derivative Instruments

See “Quantitative and Qualitative Disclosures about Market Risk” for a discussion of derivative instruments and associated market risk.

Capital Resources

Historically, our main sources of liquidity and capital resources were internally generated cash flows from operations and liquidity provided by Marathon Oil, primarily through a revolving credit facility funded by a subsidiary of Marathon Oil, with $1.83 billion available at December 31, 2010, and a long-term loan provided by Marathon Oil. See note 4 to the audited combined financial statements included in this information statement for further discussion of these financing agreements.

On February 1, 2011, we completed a private placement of $3.0 billion in aggregate principal amount of senior notes (collectively, the “Notes”), consisting of $750 million aggregate principal amount of our 3½% Senior Notes due 2016 (the “2016 Notes”), $1.0 billion aggregate principal amount of our 5  1 / 8 % Senior Notes due 2021 (the “2021 Notes”) and $1.25 billion aggregate principal amount of our 6½% Senior Notes due 2041 (the “2041 Notes”).

The 2016 Notes will mature on March 1, 2016, the 2021 Notes will mature on March 1, 2021, and the 2041 Notes will mature on March 1, 2041. Interest on each series of Notes is payable semi-annually on March 1 and September 1 of each year.

The indenture governing the Notes includes covenants that, among other things, limit our ability, and the ability of our subsidiaries, to create or permit to exist mortgages and other liens with respect to principal properties, enter into sale and leaseback transactions with respect to principal properties and merge or consolidate with any other entity or sell or convey all or substantially all of our assets. These covenants are subject to a

 

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number of important qualifications and limitations as set forth in the indenture. In addition, if we experience a “change of control repurchase event” (as defined in the indenture) with respect to a series of Notes, we will be required, unless we have exercised our right to redeem the Notes of such series, to offer to purchase the Notes of such series at a purchase price equal to 101 percent of their principal amount, plus accrued and unpaid interest. In connection with the private placement of Notes, we granted the initial purchasers certain registration rights under a registration rights agreement.

The indenture governing the Notes also contains customary events of default. Under the indenture, events of default with respect to each series of Notes include the following:

 

   

our failure to pay interest when due, continuing for 30 days;

 

   

our failure to pay the principal of or premium when due;

 

   

our failure to perform under any other applicable covenant or warranty for a period of 90 days after written notice to us of that failure as provided in the indenture; and

 

   

specified events of bankruptcy, insolvency or reorganization.

For further details of the Notes, see note 22 to the audited combined financial statements included in this information statement.

The issuance of the Notes was intended to help us establish a minimum $750 million initial cash and cash equivalents balance as of the distribution date for the spin-off. All of our cash and cash equivalents above that level will be used, on or before the distribution date, to repay existing debt payable to Marathon Oil and to make a cash distribution to Marathon Oil.

To provide us with additional liquidity following the spin-off, we have entered into a four-year revolving credit agreement dated as of March 11, 2011 (the “Credit Agreement”) with a syndicate of lenders, including JPMorgan Chase Bank, National Association, as administrative agent.

Under the Credit Agreement, upon the consummation of the spin-off and the satisfaction of certain other conditions, we will have an initial borrowing capacity of up to $2.0 billion. We have the right to seek an increase of the total amount available under the Credit Agreement to $2.5 billion, subject to certain conditions. We may obtain up to $1.5 billion of letters of credit and up to $100 million of swingline loans under the Credit Agreement. We may, subject to certain conditions, request that the term of the Credit Agreement be extended for up to two additional one-year periods. Each such extension would be subject to the approval of lenders holding greater than 50 percent of the commitments then outstanding, and the commitment of any lender that does not consent to an extension of the maturity date will be terminated on the then-effective maturity date.

The Credit Agreement contains covenants that we consider usual and customary for an agreement of this type, including a maximum ratio of consolidated indebtedness to Consolidated EBITDA (as defined in the Credit Agreement) of 3.0 to 1.0 and a minimum ratio of Consolidated EBITDA to consolidated interest expense of 3.5 to 1.0. In addition, the Credit Agreement includes limitations on indebtedness of our subsidiaries, other than subsidiaries that guarantee our obligations under the Credit Agreement. Borrowings under the Credit Agreement are subject to acceleration upon the occurrence of events of default that we consider usual and customary for an agreement of this type.

Borrowings of revolving loans under the Credit Agreement bear interest, at our option, at either (i) the sum of the Adjusted LIBO Rate (as defined in the Credit Agreement), plus a margin ranging between 1.75 percent to 3.00 percent, depending on our credit ratings, or (ii) the sum of the Alternate Base Rate (as defined in the Credit Agreement), plus a margin ranging between 0.75 percent to 2.00 percent, depending on our credit ratings. The Credit Agreement also provides for customary fees, including administrative agent fees, commitment fees, fees in respect of letters of credit and other fees.

 

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The foregoing description of the Credit Agreement is not complete and is qualified by reference to the terms of the Credit Agreement, which is included as an exhibit to the registration statement on Form 10 of which this information statement is a part.

Because of the alternatives that we expect to be available to us following the spin-off, including internally generated cash flow and access to capital markets, we believe that our short-term and long-term liquidity will be adequate to fund not only our operations, but also our anticipated near-term and long-term funding requirements, including capital spending programs, dividend payments, defined benefit plan contributions, repayment of debt maturities and other amounts that may ultimately be paid in connection with contingencies.

As discussed in more detail below under “—Capital and Investment,” we have an approved capital and investment budget of $1.38 billion for 2011, which represents about an 18 percent increase from our 2010 spending.

Our opinions concerning liquidity and our ability to avail ourselves in the future of the financing options mentioned in the above forward-looking statements are based on currently available information. If this information proves to be inaccurate, future availability of financing may be adversely affected. Factors that affect the availability of financing include our performance (as measured by various factors, including cash provided from operating activities), the state of worldwide debt and equity markets, investor perceptions and expectations of past and future performance, the global financial climate, and, in particular, with respect to borrowings, the levels of our outstanding debt and credit ratings by rating agencies. The discussion of liquidity above also contains forward-looking statements regarding expected capital and investment spending. The forward-looking statements about our capital and investment budget are based on current expectations, estimates and projections and are not guarantees of future performance. Actual results may differ materially from these expectations, estimates and projections and are subject to certain risks, uncertainties and other factors, some of which are beyond our control and are difficult to predict. Some factors that could cause actual results to differ materially include prices of and demand for crude oil and refinery feedstocks, natural gas and refined products, actions of competitors, disruptions or interruptions of our refining operations due to the shortage of skilled labor and unforeseen hazards such as weather conditions, acts of war or terrorist acts and the governmental or military response, and other operating and economic considerations.

Contractual Cash Obligations

The table below provides aggregated information on our combined obligations to make future payments under existing contracts as of December 31, 2010.

 

(In millions)

   Total      2011      2012–2013      2014–2015      Later
Years
 

Debt payable to Marathon Oil and subsidiaries (excludes interest) (1)

   $ 3,618       $ 3,618       $ —         $ —         $ —     

Capital lease obligations

     586         24         79         87         396   

Operating lease obligations

     734         110         236         204         184   

Purchase obligations:

              

Crude oil, feedstock, refined product and ethanol contracts (2)

     8,460         7,338         820         255         47   

Transportation and related contracts

     542         132         139         71         200   

Contracts to acquire property, plant and equipment

     768         679         89         —           —     

Service and materials contracts (3)

     1,129         168         255         193         513   
                                            

Total purchase obligations

     10,899         8,317         1,303         519         760   

Other long-term liabilities reported in the consolidated balance sheet (4)

     1,671         133         561         466         511   
                                            

Total contractual cash obligations

   $ 17,508       $ 12,202       $ 2,179       $ 1,276       $ 1,851   
                                            

 

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(1) All debt payable to Marathon Oil and subsidiaries is expected to be repaid prior to completion of the spin-off. We anticipate cash payments for interest on this debt of $7 million for 2011. Our revolving credit facility has variable interest rates. See note 4 to the audited combined financial statements included in this information statement for balance sheet classification of this debt.
(2) The majority of these contractual obligations as of December 31, 2010 relate to contracts to be satisfied within the first 180 days of 2011. These contracts include variable price arrangements.
(3) Primarily includes contracts for our refineries to purchase services such as utilities, supplies and various other maintenance and operating services. Certain utility, hydrogen and oxygen supply agreements include variable pricing arrangements. The terms of some of these agreements are directly related to the terms of associated capital leases.
(4) Primarily includes obligations for pension and other postretirement benefits including medical and life insurance, which we have estimated through 2020. Also includes amounts for uncertain tax positions.

As noted above under “—Capital Resources,” on February 1, 2011, we issued three series of senior notes aggregating $3.0 billion with $750 million due in 2016, $1.0 billion due in 2021 and $1.25 billion due in 2041. We anticipate cash payments for interest on this debt of $93 million for 2011, $318 million for 2012-2013, $317 million for 2014-2015 and $2.37 billion for the remaining years for a total of $3.09 billion.

Transactions with Related Parties

Purchases of crude oil and natural gas from Marathon Oil accounted for 4.2 percent or less of our total cost of revenues and purchases from related parties for 2010, 2009 and 2008. Sales of refined petroleum products to our 50 percent equity method investee, PTC, which was sold in October 2008, accounted for 2.8 percent of our total sales revenue for 2008. We believe that transactions with related parties, other than certain transactions with Marathon Oil related to the provision of administrative services, have been conducted under terms comparable to those with unrelated parties. Related party purchases of crude oil and natural gas from Marathon Oil are at market-based contract prices. The crude oil prices are based on indices that represent market value for time and place of delivery and that are also used in third-party contracts. The natural gas prices equal the price at which Marathon Oil purchases the natural gas from third parties plus the cost of transportation. See note 4 to the audited combined financial statements included in this information statement for further discussion of activity with related parties.

Off-Balance Sheet Arrangements

Off-balance sheet arrangements comprise those arrangements that may potentially impact our liquidity, capital resources and results of operations, even though such arrangements are not recorded as liabilities under accounting principles generally accepted in the United States. Although off-balance sheet arrangements serve a variety of our business purposes, we are not dependent on these arrangements to maintain our liquidity and capital resources, and we are not aware of any circumstances that are reasonably likely to cause the off-balance sheet arrangements to have a material adverse effect on liquidity and capital resources.

We have provided various guarantees related to equity method investees. These arrangements are described in note 21 to the audited combined financial statements included in this information statement.

Capital and Investment

We have a capital and investment budget of $1.38 billion for 2011. This represents about an 18 percent increase from our 2010 spending. The primary focus of the 2011 budget is continuation of the Detroit refinery heavy oil upgrading and expansion project. The budget also includes increased spending on transportation, logistics and marketing projects as well as amounts designated for corporate activities. We continuously evaluate our capital budget and make changes as conditions warrant.

 

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Refining & Marketing

The 2011 budget includes $975 million for Refining & Marketing segment projects, with approximately $600 million representing continued spending on the Detroit refinery heavy oil upgrading and expansion project. When completed, this project will increase the refinery’s heavy oil upgrading capacity, including Canadian bitumen blends, by about 80 mbpd, and will increase its total crude oil refining capacity by approximately 15 mbpd. Through the Garyville major expansion project completed at the end of 2009 and the Detroit refinery investment, we expect to more than double our coking capacity by 2012, which should lead to lower feedstock costs and increased margins.

The remainder of the budget is allocated to maintaining facilities and meeting regulatory requirements, notably the Mobile Source Air Toxics (“MSAT II”) regulations that became effective at the beginning of 2011. MSAT II spending accounts for approximately $100 million of our total 2011 budget.

Speedway

The 2011 capital budget includes $145 million for our Speedway segment, relating to remodeling and rebuilding projects for existing retail stores to upgrade and enhance our existing facilities and new construction and site acquisitions to expand our markets. Also included in the capital budget are expenditures for dispenser, equipment and technology upgrades.

Pipeline Transportation

The 2011 capital budget includes $102 million for our Pipeline Transportation segment, relating primarily to projects for new infrastructure and upgrades to enhance our existing facilities.

Corporate and Other

The remaining $158 million of our 2011 budget relates to capitalized interest, primarily associated with the Detroit refinery heavy oil upgrading and expansion project, and corporate activities.

Environmental Matters, Litigation and Contingencies

We have incurred and may continue to incur substantial capital, operating and maintenance, and remediation expenditures as a result of environmental laws and regulations. If these expenditures, as with all costs, are not ultimately reflected in the prices of our products and services, our operating results will be adversely affected. We believe that substantially all of our competitors must comply with similar environmental laws and regulations. However, the specific impact on each competitor may vary depending on a number of factors, including the age and location of its operating facilities, marketing areas, production processes and whether it is also engaged in the petrochemical business or the marine transportation of crude oil and refined products.

Legislation and regulations pertaining to climate change and greenhouse gas emissions have the potential to materially adversely impact our business, financial condition, results of operations and cash flow, including costs of compliance and permitting delays. The extent and magnitude of these adverse impacts cannot be reliably or accurately estimated at this time because specific regulatory and legislative requirements have not been finalized and uncertainty exists with respect to the measures being considered, the costs and the time frames for compliance, and our ability to pass compliance costs on to our customers. For additional information see “Risk Factors.”

 

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Our environmental expenditures(1) for each of the last three years were:

 

(In millions)

   2010      2009      2008  

Capital

   $ 223       $ 308       $ 304   

Compliance

        

Operating and maintenance

     403         350         361   

Remediation(2)

     20         27         24   
                          

Total

   $ 646       $ 685       $ 689   
                          

 

(1) Amounts are determined based on American Petroleum Institute survey guidelines regarding the definition of environmental expenditures.
(2) These amounts include spending charged against remediation reserves, where permissable, but exclude non-cash provisions recorded for environmental remediation.

Our environmental capital expenditures accounted for 19 percent of capital expenditures in 2010, 12 percent in 2009 and 10 percent in 2008.

We accrue for environmental remediation activities when the responsibility to remediate is probable and the amount of associated costs can be reasonably estimated. As environmental remediation matters proceed toward ultimate resolution or as additional remediation obligations arise, charges in excess of those previously accrued may be required.

New or expanded environmental requirements, which could increase our environmental costs, may arise in the future. We believe we comply with all legal requirements regarding the environment, but since not all of them are fixed or presently determinable (even under existing legislation) and may be affected by future legislation or regulations, it is not possible to predict all of the ultimate costs of compliance, including remediation costs that may be incurred and penalties that may be imposed.

Our environmental capital expenditures are anticipated to approximate $190 million or 14 percent of total capital expenditures in 2011. Predictions beyond 2011 can only be broad-based estimates, which have varied, and will continue to vary, due to the ongoing evolution of specific regulatory requirements, the possible imposition of more stringent requirements and the availability of new technologies, among other matters. Based on currently identified projects, we anticipate that environmental capital expenditures will be approximately $70 million in 2012; however, actual expenditures may vary as the number and scope of environmental projects are revised as a result of improved technology or changes in regulatory requirements and could increase if additional projects are identified or additional requirements are imposed.

Further, we estimate that we may spend approximately $650 million over a four-year period beginning in 2008 to comply with MSAT II regulations relating to benzene content in refined products. We have finalized our strategic approach to comply with MSAT II regulations and updated project cost estimates to comply with these requirements. Our actual MSAT II expenditures since inception have totaled $522 million through December 31, 2010, and we expect to spend approximately $100 million on MSAT II in 2011. The cost estimates are forward-looking statements and are subject to change as work is completed in 2011.

In October 2010, the EPA issued a partial waiver decision under the Clean Air Act to allow for an increase in the amount of ethanol permitted to be blended into gasoline from 10 percent (“E10”) to 15 percent (“E15”) for 2007 and newer light-duty motor vehicles. Then on January 21, 2011, the EPA issued a second waiver for the use of E15 in vehicles model year 2001-2006. There are numerous state and federal regulatory issues that would need to be addressed before E15 can be marketed for use in any traditional gasoline engines.

For more information on environmental regulations that impact us, or could impact us, see “Business—Environmental Matters” and for information on legal proceedings related to environmental matters, see note 21 to the audited combined financial statements included in this information statement.

 

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For more information on the environmental matters discussed above, lawsuits and other contingencies, see “Business—Legal Proceedings” and note 21 to the audited combined financial statements included in this information statement.

Critical Accounting Estimates

The preparation of financial statements in accordance with accounting principles generally accepted in the United States requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities as of the date of the combined financial statements and the reported amounts of revenues and expenses during the respective reporting periods. Accounting estimates are considered to be critical if (1) the nature of the estimates and assumptions is material due to the levels of subjectivity and judgment necessary to account for highly uncertain matters or the susceptibility of such matters to change; and (2) the impact of the estimates and assumptions on financial condition or operating performance is material. Actual results could differ from the estimates and assumptions used.

Fair Value Estimates

Fair value is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. There are three approaches for measuring the fair value of assets and liabilities: the market approach, the income approach and the cost approach, each of which includes multiple valuation techniques. The market approach uses prices and other relevant information generated by market transactions involving identical or comparable assets or liabilities. The income approach uses valuation techniques to measure fair value by converting future amounts, such as cash flows or earnings, into a single present value amount using current market expectations about those future amounts. The cost approach is based on the amount that would currently be required to replace the service capacity of an asset. This is often referred to as current replacement cost. The cost approach assumes that the fair value would not exceed what it would cost a market participant to acquire or construct a substitute asset of comparable utility, adjusted for obsolescence.

The fair value accounting standards do not prescribe which valuation technique should be used when measuring fair value and does not prioritize among the techniques. These standards establish a fair value hierarchy that prioritizes the inputs used in applying the various valuation techniques. Inputs broadly refer to the assumptions that market participants use to make pricing decisions, including assumptions about risk. Level 1 inputs are given the highest priority in the fair value hierarchy while Level 3 inputs are given the lowest priority. The three levels of the fair value hierarchy are as follows:

 

   

Level 1 – Observable inputs that reflect unadjusted quoted prices for identical assets or liabilities in active markets as of the measurement date. Active markets are those in which transactions for the asset or liability occur in sufficient frequency and volume to provide pricing information on an ongoing basis.

 

   

Level 2 – Observable market-based inputs or unobservable inputs that are corroborated by market data. These are inputs other than quoted prices in active markets included in Level 1, which are either directly or indirectly observable as of the measurement date.

 

   

Level 3 – Unobservable inputs that are not corroborated by market data and may be used with internally developed methodologies that result in management’s best estimate of fair value.

Valuation techniques that maximize the use of observable inputs are favored. Assets and liabilities are classified in their entirety based on the lowest priority level of input that is significant to the fair value measurement. The assessment of the significance of a particular input to the fair value measurement requires judgment and may affect the placement of assets and liabilities within the levels of the fair value hierarchy. We use a market or income approach for recurring fair value measurements and endeavor to use the best information available. See note 15 to the audited combined financial statements included in this information statement for disclosures regarding our fair value measurements.

 

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Significant uses of fair value measurements include:

 

   

assessment of impairment of long-lived assets;

 

   

assessment of impairment of goodwill;

 

   

assessment of impairment of equity method investments;

 

   

recorded value of derivative instruments; and

 

   

recorded value of investments in debt and equity securities.

Impairment Assessments of Long-Lived Assets, Goodwill and Equity Method Investments

Fair value calculated for the purpose of testing our long-lived assets, goodwill and equity method investments for impairment is estimated using the expected present value of future cash flows method and comparative market prices when appropriate. Significant judgment is involved in performing these fair value estimates since the results are based on forecasted assumptions. Significant assumptions include:

 

   

Future margins on products produced and sold . Our estimates of future product margins are based on our analysis of various supply and demand factors, which include, among other things, industry-wide capacity, our planned utilization rate, end-user demand, capital expenditures, and economic conditions. Such estimates are consistent with those used in our planning and capital investment reviews.

 

   

Future volumes. Our estimates of future pipeline throughput volumes are based on internal forecasts prepared by our Pipeline Transportation segment operations personnel.

 

   

Discount rate commensurate with the risks involved . We apply a discount rate to our cash flows based on a variety of factors, including market and economic conditions, operational risk, regulatory risk and political risk. This discount rate is also compared to recent observable market transactions, if possible. A higher discount rate decreases the net present value of cash flows.

 

   

Future capital requirements . These are based on authorized spending and internal forecasts.

We base our fair value estimates on projected financial information which we believe to be reasonable. However, actual results may differ from these projections.

The need to test for impairment can be based on several indicators, including a significant reduction in prices of or demand for products produced, a poor outlook for short-term profitability, a significant reduction in pipeline throughput volumes, significant reduction in refining margins, other changes to contracts or changes in the regulatory environment in which the asset or equity method investment is located.

Long-lived assets used in operations are assessed for impairment whenever changes in facts and circumstances indicate that the carrying value of the assets may not be recoverable. For purposes of impairment evaluation, long-lived assets must be grouped at the lowest level for which independent cash flows can be identified, which generally is the refinery and associated distribution system level for Refining & Marketing segment assets, site level for Speedway segment convenience stores or the pipeline system level for Pipeline Transportation segment assets. If the sum of the undiscounted estimated pretax cash flows is less than the carrying value of an asset group, the carrying value is written down to the estimated fair value.

Unlike long-lived assets, goodwill must be tested for impairment at least annually, or between annual tests if an event occurs or circumstances change that would more likely than not reduce the fair value of a reporting unit below its carrying amount. Goodwill is tested for impairment at the reporting unit level.

Equity method investments are assessed for impairment whenever a loss in value is other than a temporary decline. Factors providing evidence of such a loss include the fair value of an investment that is less than its carrying value, absence of an ability to recover the carrying value or the investee’s inability to generate income sufficient to justify our carrying value.

 

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An estimate of the sensitivity to net income resulting from impairment calculations is not practicable, given the numerous assumptions (e.g., pricing, volumes and discount rates) that can materially affect our estimates. That is, unfavorable adjustments to some of the above listed assumptions may be offset by favorable adjustments in other assumptions.

Derivatives

We record all derivative instruments at fair value. A large volume of our commodity derivatives are exchange-traded and require few assumptions in arriving at fair value. Fair value estimation for all our derivative instruments is discussed in note 15 to the audited combined financial statements included in this information statement.

Additional information about derivatives and their valuation may be found in “Quantitative and Qualitative Disclosures about Market Risk.”

Investments in Debt and Equity Securities

We record all of our investments in debt and equity securities at fair value. Our investments in related party debt securities are redeemable on any business day at a stated price which has been determined to approximate fair value. Our investments in other equity securities are exchange-traded, and fair value is determined from quoted market prices.

Tax Assets and Liabilities

Our operations are subject to various tax liabilities, including federal, state and foreign income taxes and transactional taxes such as excise, sales/use, property and payroll taxes. We record tax liabilities based on our assessment of existing tax laws and regulations. The recording of tax liabilities may require significant judgment and estimates. A contingent liability related to a transactional tax claim is recorded if the loss is both probable and estimable. Actual incurred tax liabilities can vary from our estimates for a variety of reasons, including different interpretations of tax laws and regulations and different assessments of the amount of tax due.

We recognize the financial statement effects of an income tax position when it is more likely than not that the position will be sustained upon examination by a taxing authority. In determining our income tax provision, we must assess the likelihood that our deferred tax assets will be recovered through future taxable income. Judgment is required in estimating the amount of valuation allowance, if any, that should be recorded against those deferred income tax assets. If our actual results of operations differ from such estimates or our estimates of future taxable income change, the valuation allowance may need to be revised.

New tax laws and regulations and changes to existing tax laws and regulations are continuously being proposed or promulgated and the implementation of future legislative and regulatory tax initiatives could result in increased tax liabilities that we cannot predict at this time.

An estimate of the sensitivity to net income that would result from changes in the assumptions and estimates used in determining our tax liabilities is not practical due to the number of assumptions and tax laws involved, the various potential interpretations of the tax laws and the wide range of possible outcomes.

Pension and Other Postretirement Benefit Obligations

Accounting for pension and other postretirement benefit obligations involves numerous assumptions, the most significant of which relate to the following:

 

   

the discount rate for measuring the present value of future plan obligations;

 

   

the expected long-term return on plan assets;

 

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the rate of future increases in compensation levels; and

 

   

health care cost projections.

We develop our demographics and utilize the work of third-party actuaries to assist in the measurement of these obligations. We have selected different discount rates for our funded pension plans and our unfunded retiree health care plan due to the different projected liability durations of 8 years and 12 years. The selected rates are compared to various similar bond indexes for reasonableness. In determining the assumed discount rates, our methods include a review of market yields on high-quality corporate debt and use of our third-party actuary’s discount rate modeling tool. This tool applies a yield curve to the projected benefit plan cash flows using a hypothetical Aa yield curve. The yield curve represents a series of annualized individual discount rates from 1.5 to 30 years. The bonds used are rated Aa or higher by a recognized rating agency and only non-callable bonds are included. Each issue is required to have at least $150 million par value outstanding. The top quartile bonds are selected within each maturity group to construct the yield curve.

Of the assumptions used to measure the year-end obligations and estimated annual net periodic benefit cost, the discount rate has the most significant effect on the periodic benefit cost reported for the plans. Decreasing the discount rates of 5.05 percent for our pension plans and 5.55 percent for our other postretirement benefit plans by 0.25 would increase pension obligations and other postretirement benefit plan obligations by $108 million and $18 million, respectively, and would increase defined benefit pension expense and other postretirement benefit plan expense by $10 million and $1 million, respectively.

The asset rate of return assumption considers the asset mix of the plans (currently targeted at approximately 75 percent equity securities and 25 percent debt securities for the funded pension plans), past performance and other factors. Certain components of the asset mix are modeled with various assumptions regarding inflation, debt returns and stock yields. Our long term asset rate of return assumption is compared to those of other companies and to historical returns for reasonableness. Decreasing the 8.50 percent asset rate of return assumption by 0.25 would not have a significant impact on our defined benefit pension expense.

Compensation change assumptions are based on historical experience, anticipated future management actions and demographics of the benefit plans.

Health care cost trend assumptions are developed based on historical cost data, the near-term outlook and an assessment of likely long-term trends.

Note 18 to the audited combined financial statements included in this information statement includes detailed information about the assumptions used to calculate the components of our annual defined benefit pension and other postretirement plan expense, as well as the obligations and accumulated other comprehensive loss reported on the year-end balance sheets.

Contingent Liabilities

We accrue contingent liabilities for environmental remediation, tax deficiencies related to operating taxes, product liability claims and litigation claims when such contingencies are probable and estimable. Actual costs can differ from estimates for many reasons. For instance, settlement costs for claims and litigation can vary from estimates based on differing interpretations of laws, opinions on responsibility and assessments of the amount of damages. Similarly, liabilities for environmental remediation may vary from estimates because of changes in laws, regulations and their interpretation; additional information on the extent and nature of site contamination; and improvements in technology. Our in-house legal counsel regularly assess these contingent liabilities. In certain circumstances, outside legal counsel are also utilized.

 

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We generally record losses related to these types of contingencies as cost of revenues or selling, general and administrative expenses in the combined statements of income, except for tax deficiencies unrelated to income taxes, which are recorded as other taxes. For additional information on contingent liabilities, see “—Environmental Matters, Litigation and Contingencies.”

An estimate of the sensitivity to net income if other assumptions had been used in recording these liabilities is not practical because of the number of contingencies that must be assessed, the number of underlying assumptions and the wide range of reasonably possible outcomes, in terms of both the probability of loss and the estimates of such loss.

Accounting Standards Not Yet Adopted

As of December 31, 2010, there were no significant accounting standards applicable to the RM&T Business that had not yet been adopted.

 

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QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

General

We are exposed to market risks related to the volatility of crude oil and refined product prices. We employ various strategies, including the use of commodity derivative instruments, to manage the risks related to these price fluctuations. We are also exposed to market risks related to changes in interest rates and foreign currency exchange rates. We are at risk for changes in fair value of all of our derivative instruments; however, such risk should be mitigated by price changes related to the underlying commodity transaction.

We believe that our use of derivative instruments, along with our risk assessment procedures and internal controls, does not expose us to material adverse consequences. While the use of derivative instruments could materially affect our results of operations in particular quarterly or annual periods, we believe that the use of these instruments will not have a material adverse effect on our financial position or liquidity.

See notes 15 and 16 to the audited combined financial statements included in this information statement for more information about the fair value measurement of our derivatives, as well as the amounts recorded in our combined balance sheets and statements of income. We do not designate any of our derivative instruments as hedges for accounting purposes.

Commodity Price Risk

Our strategy is to obtain competitive prices for our products and allow operating results to reflect market price movements dictated by supply and demand. We use a variety of commodity derivative instruments, including futures, forwards, swaps and combinations of options, as part of an overall program to manage commodity price risk. We also may utilize the market knowledge gained from these activities to do a limited amount of trading not directly related to our physical transactions.

We use commodity derivative instruments to manage price risk on crude oil and refined product inventories. We also use derivative instruments to manage price risk related to the acquisition of foreign-sourced crude oil and ethanol blended with refined petroleum products. In addition, we may use commodity derivative instruments to manage risk on fixed price contracts for the sale of refined products. The majority of these derivatives are exchange-traded contracts for crude oil, refined products and ethanol.

Open Derivative Positions and Sensitivity Analysis

The table below sets forth information relating to our significant open derivative contracts as of December 31, 2010. These contracts enable us to effectively correlate our commodity price exposure to the relevant market indicators, thereby mitigating price risk.

 

     Position     Barrels per Day     Weighted Average
Price

(Per  Barrel)
     Benchmark  

Crude Oil

         

Exchange-traded

     Long (1)      36,608      $ 89.67        
 
CME and IPE
Crude(3)(4)
  
  

Exchange-traded

     Short (1)      (61,485   $ 88.03        
 
CME and IPE
Crude(3)(4)
  
  

 

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     Term     Barrels per Day     Weighted Average
Price

(per  Gallon)
     Benchmark  

Refined Products

         

Exchange-traded

     Long (2)      13,308      $ 2.40        
 
CME Heating Oil
and RBOB(3)(5)
 
  

Exchange-traded

     Short (2)      (11,044   $ 2.46        
 
CME Heating Oil
and RBOB(3)(5)
 
  

 

(1) 87 percent of these contracts expire in the first quarter of 2011.
(2) 98 percent of these contracts expire in the first quarter of 2011.
(3) Chicago Mercantile Exchange (“CME”).
(4) International Petroleum Exchange (“IPE”)
(5) Reformulated Gasoline for Oxygenate Blending (“RBOB”).

Sensitivity analysis of the incremental effects on income from operations (“IFO”) of hypothetical 10 percent and 25 percent increases and decreases in commodity prices for open commodity derivative instruments as of December 31, 2010 is provided in the following table.

 

       Incremental Change
in IFO from a
Hypothetical Price
Increase of
    Incremental Change
in IFO from a
Hypothetical Price
Decrease of
 

(In millions)

       10%             25%             10%             25%      

As of December 31, 2010

        

Crude oil

   $ (71 )   $ (177 )   $ 82      $ 205   

Refined products

     9        22        (9     (22

We remain at risk for possible changes in the market value of commodity derivative instruments; however, such risk should be mitigated by price changes in the underlying physical commodity. Effects of these offsets are not reflected in the above sensitivity analysis.

We evaluate our portfolio of commodity derivative instruments on an ongoing basis and add or revise strategies in anticipation of changes in market conditions and in risk profiles. Changes to the portfolio after December 31, 2010 would cause future IFO effects to differ from those presented above.

Interest Rate Risk

We are impacted by interest rate fluctuations related to our debt obligations to Marathon Oil and its subsidiaries. At December 31, 2010, our debt payable to Marathon Oil and its subsidiaries was expected to be repaid prior to the spin-off, and was comprised of a fixed-rate loan with Marathon Oil with an outstanding balance of $1,047 million and a variable-rate revolving credit agreement with a Marathon Oil subsidiary with an outstanding balance of $2,571 million.

We did not utilize derivatives to manage our market risk exposure to interest rate fluctuations. The interest rate risk was not considered significant to our financial position or results of operations. Our exposure to market risk for changes in interest rates may change based on the terms of any future debt incurrence and the expected repayment of debt payable to Marathon Oil and subsidiaries in connection with the separation.

Foreign Currency Exchange Rate Risk

We are impacted by foreign exchange rate fluctuations related to some of our purchases of crude oil denominated in Canadian Dollars. We did not utilize derivatives to manage our market risk exposure to these foreign exchange rate fluctuations.

 

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Counterparty Risk

We are also exposed to financial risk in the event of nonperformance by counterparties. We regularly review the creditworthiness of counterparties and enter into master netting agreements when appropriate.

Forward-Looking Statements

These quantitative and qualitative disclosures about market risk include forward-looking statements with respect to management’s opinion about risks associated with the use of derivative instruments. These statements are based on certain assumptions with respect to market prices and industry supply of and demand for crude oil, other refinery feedstocks, refined products and ethanol. If these assumptions prove to be inaccurate, future outcomes with respect to our use of derivative instruments may differ materially from those discussed in the forward-looking statements.

 

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BUSINESS

Overview

We are currently a wholly owned subsidiary of Marathon Oil. Our company was incorporated in Delaware on November 9, 2009, in connection with an internal restructuring. Following the spin-off, we will be an independent, publicly traded company. Marathon Oil will not retain any ownership interest in our company. Our assets and business consist of those that Marathon Oil attributes to its existing petroleum refining, marketing and transportation operations and that are reported as its refining, marketing and transportation segment in its financial statements.

We are one of the largest petroleum product refiners, transporters and marketers in the United States. We currently own and operate six refineries, all located in the United States, with an aggregate crude oil refining capacity in excess of 1.1 million barrels per day. Our refineries supply refined products to resellers and consumers within our market areas, including the Midwest, Gulf Coast and Southeast regions of the United States. We distribute refined products to our customers through one of the largest private domestic fleets of inland petroleum product barges, one of the largest terminal operations in the United States, and a combination of MPC-owned and third-party-owned trucking and rail assets. We currently own, operate, lease or have ownership interests in approximately 9,600 miles of crude and refined product pipelines to deliver crude oil to our refineries and other locations and refined products to wholesale and retail market areas, making us one of the largest petroleum pipeline companies in the United States on the basis of total volumes delivered. We sell refined products to wholesale marketing customers, large consumers such as utilities and on the spot market. We sell light products at 63 owned and operated and approximately 45 other exchange/throughput terminals throughout our 18-state wholesale market area. We supply refined products to approximately 5,100 Marathon ® -branded retail outlets located within our market areas, which are operated by independent dealers and jobbers. In addition, we currently sell refined products directly to consumers through approximately 1,350 Speedway ® -branded stores, which one of our subsidiaries owns and operates.

For the year ended December 31, 2010, we generated revenues of approximately $62.5 billion and income from operations of approximately $1.01 billion. For the year ended December 31, 2009, we generated revenues of approximately $45.5 billion and income from operations of approximately $654 million. For financial information about our business segments, please see the tables in Note 7 of the notes to the audited combined financial statements included in this information statement, which presents revenue, income from operations, depreciation and amortization expense and capital expenditures for the years ended December 31, 2010, 2009 and 2008.

Our operations consist of three business segments:

 

   

Refining and Marketing—refines crude oil and other feedstocks at our six refineries in the Gulf Coast and Midwest regions of the United States and distributes refined products through various means, including barges, terminals and trucks that we own or operate. We sell refined products to wholesale marketing customers domestically and internationally, to buyers on the spot market, to our Speedway business segment and to dealers and jobbers who operate Marathon ® -branded retail outlets;

 

   

Speedway—sells transportation fuels and convenience products in the retail market, primarily in the Midwest, through Speedway ® -branded convenience stores; and

 

   

Pipeline Transportation—transports crude oil and other feedstocks to our refineries and other locations, delivers refined products to wholesale and retail market areas and owns, among other transportation-related assets, a majority interest in LOOP LLC, which is the owner and operator of the only U.S. deepwater oil port.

On December 1, 2010, we completed the sale of the Northern-Tier Assets. These assets included the 74,000 barrel-per-day St. Paul Park refinery and associated terminals, 166 SuperAmerica ® -branded convenience stores

 

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(including six stores in Wisconsin) along with the SuperMom’s ® bakery (a baked goods supply operation) and certain associated trademarks, SuperAmerica Franchising LLC, interests in pipeline assets in Minnesota and associated inventories. This transaction was approximately $935 million, which included approximately $330 million for inventories. We received $740 million in cash, net of closing costs but prior to post-closing adjustments. The terms of the sale included (1) a preferred stock interest in the entity that holds the Northern-Tier Assets with a stated value of $80 million, (2) a maximum $125 million earnout provision payable to us over eight years, (3) a maximum $60 million of margin support payable to the buyer over two years, up to a maximum of $30 million per year, (4) a receivable from the buyer of $107 million payable in the first quarter of 2011 and (5) guarantees with a maximum exposure of $11 million made by us on behalf of and to the buyer related to a limited number of convenience store sites. As a result of this continuing involvement, the related gain on sale of $89 million was deferred. The timing and amount of deferred gain ultimately recognized in the income statement is subject to the resolution of our continuing involvement. The operating statistics included in this “Business” description reflect the exclusion of these assets, except as otherwise indicated.

Our Competitive Strengths

High Quality Asset Base

We believe we are the largest crude oil refiner in the Midwest and the fifth largest in the United States, based on crude oil refining capacity. We currently own a six-plant refinery network with over 1.1 million barrels per day of crude oil throughput capacity. Our refineries process a wide range of crude oils, including heavy and sour crude oils, which can be purchased at a discount to sweet crude, and produce transportation fuels such as gasoline and distillate, as well as other refined products.

Strategic Location

The geographic locations of our refineries and our extensive midstream distribution system provide us with significant strategic advantages. Located in PADD II and PADD III, which consist of states in the Midwest and the Gulf Coast regions of the United States, our refineries have the ability to procure crude oil from a variety of supply sources, including domestic, Canadian and other foreign sources, which provides us with flexibility to optimize supply costs. For example, geographic proximity to Canadian crude oil supply sources allows our refineries to incur lower transportation costs than competitors transporting Canadian crude oil to the Gulf Coast for refining. Our refinery locations and midstream distribution system also allow us to serve a broad range of key end-user markets across the United States quickly and cost-effectively.

Attractive Growth Opportunities Through Internal Projects

We believe that we have attractive growth opportunities through internal capital projects. We recently completed a major expansion project at our Garyville, Louisiana refinery, which initially expanded the crude oil refining capacity of this refinery by 180 mbpd to 436 mbpd. The Garyville expansion project has enhanced our scale efficiency and our feedstock flexibility. We are also continuing work on a currently projected $2.2 billion heavy oil upgrading and expansion project at our Detroit, Michigan refinery. When completed in the second half of 2012, the project will enable the refinery to process additional heavy, sour crude oils, including Canadian bitumen blends, and will increase the refinery’s crude oil refining capacity by approximately 15 mbpd. The estimated project costs referenced in this paragraph exclude amounts for capitalized interest.

Extensive Midstream Distribution Networks

We believe the relative scale of our transportation and distribution assets and operations distinguishes us from other refining and marketing companies. We own one of the largest petroleum pipeline companies in the United States based on total volume delivered. We also own one of the largest private domestic fleets of inland petroleum product barges and one of the largest terminal operations in the United States, as well as trucking and

 

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rail assets. We operate this system in coordination with our refining network, which enables us to achieve synergies by transferring intermediate stocks between refineries, optimizing feedstock and raw material supplies and optimizing refined product distribution. This in turn results in economy-of-scale advantages that contribute to profitability.

Competitively Positioned Marketing Operations

We are one of the largest wholesale suppliers of gasoline and distillate to resellers within each of our market areas. We have two strong retail brands: Speedway ® and Marathon ® . We believe our Speedway ® stores, which we operate through our Speedway subsidiary, comprise one of the largest chains of company-owned and operated retail gasoline and convenience stores in the Midwest and the fourth largest in the United States. The Marathon ® brand is an established motor fuel brand in the Midwest and Southeast regions of the United States, and is available through approximately 5,100 branded locations in 18 states. We believe our distribution system allows us to maximize the sale value of our products and minimize cost.

Established Track Record of Profitability

We have demonstrated an ability to achieve competitive financial results throughout all stages of the recent downstream business cycle. Our historical net income in 2010, 2009 and 2008 was $623 million, $449 million and $1,215 million, respectively. We believe our business mix and business strategies position us well to continue to achieve competitive financial results.

Our Business Strategies

Pursue Growth by Expanding and Upgrading Existing Asset Base

We continually evaluate opportunities to expand our existing asset base and consider capital projects that enhance our core competitiveness in the downstream business. Our recently completed Garyville expansion project initially increased that refinery’s crude oil refining capacity by approximately 180 mbpd. Our current initiatives include an upgrade project at our Detroit, Michigan refinery, which will enhance our ability to process lower-cost heavier and sourer crude oils, as well as increase the refinery’s crude oil refining capacity by approximately 15 mbpd. We will continue to pursue other growth opportunities that provide an attractive return on capital.

Increase Profitability Through Margin Improvement

We intend to increase the profitability of our existing assets by pursuing a number of margin improvement opportunities, including increasing our feedstock flexibility and increasing our production of more high-value end products. We intend to increase our feedstock flexibility by completing our expansion and upgrade project at Detroit. By refining heavier crude oil, we will be able to reduce our overall feedstock costs without sacrificing the value of our refined products.

Selectively Pursue Acquisitions

Our management team has demonstrated its ability to identify complementary assets, consummate acquisitions on favorable terms and integrate acquired assets. Our management’s acquisition experience includes substantial involvement in the combination of the refining, marketing and transportation assets of Ashland with those of Marathon Oil into a jointly owned business in 1998 and Marathon Oil’s subsequent acquisition of Ashland’s interest in 2005. We will continue to evaluate potential acquisitions, with the aim of increasing earnings while maintaining financial discipline. We may also pursue the strategic divestiture of assets from time to time, when doing so is in our best long-term interest. An example is the recent sale of our Northern-Tier Assets, as described in “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” We believe that our separation from Marathon Oil will enhance our ability to execute this strategy by allowing us to focus on assets that are best suited to our downstream business.

 

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Risk Factors

Our business is subject to a number of risks, including risks related to the spin-off. The following list of risk factors is not exhaustive. Please read “Risk Factors” carefully for a more thorough description of these and other risks.

Risks Related to the Spin-Off

 

   

We may not realize the potential benefits from the spin-off.

 

   

Our historical combined and pro forma financial information are not necessarily indicative of our future financial condition, future results of operations or future cash flows nor do they reflect what our financial condition, results of operations or cash flows would have been as an independent public company during the periods presented.

 

   

We have no history operating as an independent public company. We will incur significant expenses to create the corporate infrastructure necessary to operate as an independent public company, and we will experience increased ongoing costs in connection with being an independent public company.

 

   

If the spin-off does not qualify as a tax-free transaction, you and Marathon Oil could be subject to material amounts of taxes and, in certain circumstances, our company could be required to indemnify Marathon Oil for material taxes pursuant to indemnification obligations under the tax sharing agreement.

 

   

We may not be able to engage in desirable strategic or capital raising transactions following the spin-off. In addition, under some circumstances, we could be liable for any adverse tax consequences resulting from engaging in significant strategic or capital-raising transactions.

 

   

Potential indemnification liabilities to Marathon Oil pursuant to the separation and distribution agreement could materially and adversely affect our business, financial condition, results of operations and cash flows.

 

   

Following the spin-off, we will have substantial debt obligations that could restrict our business, financial condition, results of operations or cash flows. In addition, our business, financial condition, results of operations and cash flows could be harmed by a deterioration of our credit profile or by factors adversely affecting the credit markets generally.

Risks Related to Our Industry and Our Business

 

   

A substantial or extended decline in refining and marketing gross margins would reduce our operating results and cash flows and could materially adversely impact our future rate of growth and the carrying value of our assets.

 

   

Changes in environmental or other laws or regulations may reduce our refining and marketing gross margins.

 

   

Worldwide political and economic developments could materially and adversely impact our business, financial condition, results of operations and cash flows.

Risks Relating to Ownership of Our Common Stock

 

   

Because there has not been any public market for our common stock, the market price and trading volume of our common stock may be volatile and you may not be able to resell your shares at or above the initial market price of our common stock following the spin-off.

 

   

Provisions in our corporate documents and Delaware law could delay or prevent a change in control of our company, even if that change may be considered beneficial by some of our stockholders.

 

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Refining and Marketing

We currently own and operate six refineries in the Gulf Coast and Midwest regions of the United States with an aggregate crude oil refining capacity of over 1.1 million barrels per day as of December 31, 2010. During 2010 (including the St. Paul Park refinery until December 1), our refineries processed 1,173 mbpd of crude oil and 162 mbpd of other charge and blend stocks. During 2009, our refineries (including the St. Paul Park refinery) processed 957 mbpd of crude oil and 196 mbpd of other charge and blend stocks. The table below sets forth the location and daily crude oil refining capacity of each of our currently owned refineries.

 

Refinery

   12/31/2010
Crude Oil
Refining
Capacity
(mbpd)(1)
 

Garyville, Louisiana

     464   

Catlettsburg, Kentucky

     212   

Robinson, Illinois

     206   

Detroit, Michigan

     106   

Canton, Ohio

     78   

Texas City, Texas

     76   
        

Total

     1,142   
        

 

(1) Refining throughput can exceed crude oil capacity due to the processing of other feedstocks in addition to crude oil.

Our refineries include crude oil atmospheric and vacuum distillation, fluid catalytic cracking, catalytic reforming, desulfurization and sulfur recovery units. The refineries process a wide variety of crude oils and produce numerous refined products, ranging from transportation fuels, such as reformulated gasolines, blend-grade gasolines intended for blending with fuel ethanol and ultra-low-sulfur diesel fuel, to heavy fuel oil and asphalt. Additionally, we manufacture aromatics, cumene, propane, propylene and sulfur. Our refineries are integrated with each other via pipelines, terminals and barges to maximize operating efficiency. The transportation links that connect our refineries allow the movement of intermediate products between refineries to optimize operations, produce higher margin products and utilize our processing capacity efficiently. For example, naphtha may be moved from Texas City to Robinson where excess reforming capacity is available. Also, by shipping intermediate products between facilities during partial refinery shutdowns, we are able to utilize processing capacity that is not directly affected by the shutdown work.

Garyville, Louisiana Refinery . Our Garyville, Louisiana refinery is located along the Mississippi River in southeastern Louisiana between New Orleans and Baton Rouge. The Garyville refinery is configured to process heavy sour crude oil into products such as gasoline, distillates, sulfur, asphalt, propane, polymer grade propylene, isobutane and coke. An expansion project was completed in the fourth quarter of 2009 that increased Garyville’s crude oil refining capacity, making it one of the largest refineries in the U.S. Our Garyville refinery has earned designation as a U.S. Occupational Safety and Health Administration (“OSHA”) Voluntary Protection Program (“VPP”) STAR site.

Catlettsburg, Kentucky Refinery . Our Catlettsburg, Kentucky refinery is located in northeastern Kentucky on the western bank of the Big Sandy River, near the confluence with the Ohio River. The Catlettsburg refinery processes sweet and sour crude oils into products such as gasoline, asphalt, diesel, jet fuel, petrochemicals, propane, propylene and sulfur.

Robinson, Illinois Refinery . Our Robinson, Illinois refinery is located in southeastern Illinois. The Robinson refinery processes sweet and sour crude oils into products such as multiple grades of gasoline, jet fuel, kerosene, diesel fuel, propane, propylene, sulfur and anode-grade coke. The Robinson refinery has earned designation as an OSHA VPP STAR site.

 

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Detroit, Michigan Refinery . Our Detroit, Michigan refinery is located near Interstate 75 in southwest Detroit. It is the only petroleum refinery currently operating in Michigan. The Detroit refinery processes light sweet and heavy sour crude oils, including Canadian crude oils, into products such as gasoline, diesel, asphalt, slurry, propane, chemical grade propylene and sulfur. In 2007, we approved a heavy oil upgrading and expansion project at this refinery, with a current projected cost of $2.2 billion (excluding capitalized interest). This project will enable the refinery to process an additional 80 mbpd of heavy sour crude oils, including Canadian bitumen blends, and will increase its crude oil refining capacity by approximately 15 mbpd. Construction began in the first half of 2008 and reached 50 percent completion at December 31, 2010. The project is expected to be complete in the second half of 2012. Our Detroit refinery was certified as a Michigan VPP STAR site in the first quarter of 2010.

Canton, Ohio Refinery . Our Canton, Ohio refinery is located approximately 60 miles southeast of Cleveland, Ohio. The Canton refinery processes sweet and sour crude oils into products such as gasoline, diesel fuels, kerosene, propane, sulfur, asphalt, roofing flux, home heating oil and No. 6 industrial fuel oil.

Texas City, Texas Refinery . Our Texas City, Texas refinery is located on the Texas Gulf Coast approximately 30 miles south of Houston, Texas. The refinery processes sweet crude oil into products such as gasoline, propane, chemical grade propylene, slurry, sulfur and aromatics.

Planned maintenance activities, or turnarounds, requiring temporary shutdown of certain refinery operating units, are periodically performed at each refinery. In recent years, planned turnarounds have occurred at several refineries per year.

Refined Product Yields

The following table sets forth our refinery production (including the St. Paul Park refinery until December 1, 2010) by product group for each of the last three years (in mbpd).

 

     2010      2009      2008  

Gasoline

     726         669         609   

Distillates

     409         326         342   

Propane

     24         23         22   

Feedstocks and special products

     97         62         96   

Heavy fuel oil

     24         24         24   

Asphalt

     76         66         75   
                          

Total

     1,356         1,170         1,168   
                          

Crude Oil Supply

We obtain most of the crude oil we refine through negotiated contracts and purchases or exchanges on the spot market. Our crude oil supply contracts are generally term contracts with market-related pricing provisions. The following table provides information on our sources of crude oil for each of the last three years (including the St. Paul Park refinery until December 1, 2010) (in mbpd). The crude oil sourced outside of North America was acquired from various foreign national oil companies, producing companies and trading companies.

 

Sources of Crude Oil Refined

   2010      2009      2008  

United States

     720         613         466   

Canada

     115         136         135   

Middle East and Africa

     250         154         244   

Other international

     88         54         99   
                          

Total(1)

     1,173         957         944   
                          

Average cost of crude oil throughput (dollars per barrel)

   $ 78.57       $ 62.10       $ 98.34   

 

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(1) Our net purchases of crude oil from Marathon Oil were approximately 66, 36 and 27 mbpd for the years 2010, 2009 and 2008, respectively.

Our refineries receive crude oil and other feedstocks and distribute our refined products through a variety of channels, including pipelines, trucks, railcars, ships and barges.

Refined Product Marketing and Distribution

We believe we are one of the largest wholesale suppliers of gasoline and distillates to resellers and consumers within our 18-state market area in the Midwest, Gulf Coast and Southeast regions of the United States. Independent retailers, unbranded jobbers, Marathon ® -brand dealers and jobbers, our Speedway ® stores, airlines, transportation companies, railroads, marine companies and utilities comprise the core of our customer base.

The following table sets forth, as a percentage of total refined product sales, sales of refined products to our different customer types for the year ended December 31, 2010 (including the Northern-Tier Assets until December 1, 2010).

 

Customer type

   Year Ended
December 31, 2010
 

Private-brand marketers, commercial and industrial consumers

     70

Marathon ® -branded dealers and jobbers

     17

Speedway segment’s retail outlets

     13

The following table sets forth the locations (by state) where Marathon ® -brand dealers and jobbers maintain Marathon ® -branded retail outlets, as of December 31, 2010:

 

State

   Number of
Marathon ® -Branded Stations
 

Alabama

     137   

Florida

     270   

Georgia

     289   

Illinois

     457   

Indiana

     650   

Kentucky

     601   

Maryland

     1   

Michigan

     775   

Minnesota

     87   

North Carolina

     301   

Ohio

     887   

Pennsylvania

     27   

South Carolina

     100   

Tennessee

     178   

Texas

     1   

Virginia

     136   

West Virginia

     109   

Wisconsin

     89   
        

Total

     5,095   
        

 

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The following table sets forth our refined products sales volumes by product group and our average sales price for each of the last three years (including the Northern-Tier Assets until December 1, 2010) (in mbpd).

 

     Refined Product Sales  
     2010      2009      2008  

Gasoline

     912         819         744   

Distillates

     434         355         374   

Propane

     24         23         22   

Feedstocks and special products

     103         75         100   

Heavy fuel oil

     23         24         23   

Asphalt

     77         69         76   
                          

Total

     1,573         1,365         1,339   
                          

Average sales price (dollars per gallon)

   $ 2.24       $ 1.86       $ 2.78   

As of December 31, 2010, we owned and operated 63 light product and 21 asphalt terminals. In addition, we distribute through approximately 45 third-party light product and 12 third-party asphalt terminals in our market area. As of that date, our marine transportation operations included 14 towboats, as well as 168 owned and 8 leased barges that transport refined products on the Ohio, Mississippi and Illinois rivers and their tributaries, as well as the Intercoastal Waterway. We lease or own approximately 1,760 railcars of various sizes and capacities for movement and storage of refined products. In addition, we own 122 transport trucks for the movement of refined products.

Gasoline and Distillates . We sell gasoline, gasoline blendstocks and No. 1 and No. 2 fuel oils (including kerosene, jet fuel and diesel fuel) to wholesale marketing customers in the Midwest, Gulf Coast and southeastern regions of the United States. Including the Northern-Tier Assets until December 1, 2010, we sold 54 percent of our gasoline volumes and 88 percent of our distillates volumes on a wholesale or spot market basis for 2010, and 52 percent of our gasoline volumes and 87 percent of our distillates volumes on a wholesale or spot market basis in 2009. The demand for gasoline and distillates is seasonal in many of our markets, with demand typically being at its highest levels during the summer months.

Renewable Fuels . We have blended ethanol into gasoline for over 20 years and began expanding our blending program in 2007, in part due to federal regulations that require us to use specified volumes of renewable fuels. Including the Northern-Tier Assets until December 1, 2010, ethanol volumes sold in blended gasoline were 68 mbpd in 2010, 60 mbpd in 2009 and 54 mbpd in 2008. The future expansion or contraction of our ethanol blending program will be driven by the economics of the ethanol supply and by government regulations. We sell reformulated gasoline, which is also blended with ethanol, in parts of our marketing territory, including: Chicago, Illinois; Louisville, Kentucky; northern Kentucky; and Milwaukee, Wisconsin. We also sell biodiesel-blended diesel in Illinois, Kentucky and Pennsylvania.

We hold a 35 percent interest in an entity which owns and operates a 110-million-gallon-per-year ethanol production facility in Clymers, Indiana. We also own a 50 percent interest in an entity which owns a 110-million-gallon-per-year ethanol production facility in Greenville, Ohio. Both of these facilities are managed by a co-owner.

Propane . We produce propane at all six of our refineries. Propane is primarily used for home heating and cooking, as a feedstock within the petrochemical industry, for grain drying, and as a fuel for trucks and other vehicles. Our propane sales are typically split evenly between the home heating market and industrial consumers.

Petrochemicals and Special Products . We are a producer and marketer of petrochemicals and specialty products. Product availability varies by refinery and includes benzene, cumene, dilute naphthalene oil, molten

 

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sulfur, propylene, toluene and xylene. We market propylene, cumene and sulfur domestically to customers in the chemical industry. In early 2009, we discontinued production and sales of petroleum pitch and aliphatic solvents at our Catlettsburg refinery.

Heavy Fuel Oil . We produce and market heavy residual fuel oil or related components at all six of our refineries. Heavy residual fuel oil is primarily used in the utility and ship bunkering (fuel) industries, though there are other more specialized uses of the product.

Asphalt . We have refinery-based asphalt production capacity of up to 92 mbpd. We market asphalt through 33 owned or leased terminals throughout the Midwest and Southeast. We have a broad customer base, including asphalt-paving contractors, government entities (states, counties, cities and townships) and asphalt roofing shingle manufacturers. We sell asphalt in the wholesale and cargo markets via rail and barge. We also produce asphalt cements, polymer modified asphalt, emulsified asphalt and industrial asphalts.

Petroleum Coke . We have the capacity to produce 1,400 tons per day of anode grade coke at our Robinson refinery, which is used to make carbon anodes for the aluminum smelting industry, and 5,500 tons per day of fuel grade coke at the Garyville refinery, which is used for power generation and in miscellaneous industrial applications.

Speedway

Our Speedway subsidiary sells gasoline and merchandise through retail outlets that it owns and operates, primarily under the Speedway ® brand. Diesel fuel is also sold at a number of these outlets. Speedway ® -branded retail outlets offer a wide variety of merchandise, such as prepared foods, beverages and non-food items, including a significant number of private-label items. For 11 consecutive quarters through September 30, 2010, Speedway’s stores have been rated as the best convenience store chain in terms of overall customer satisfaction in a national consumer perception survey conducted by Corporate Research International ® . In 2010 and 2009, Harris Interactive’s EquiTrend ® annual brand equity study named Speedway ® the number one gasoline brand with consumers. Speedy Rewards™, an industry-leading customer loyalty program, has built active membership to 3.5 million customers (including those who patronize stores included in the Northern-Tier Assets).

As of December 31, 2010, Speedway had 1,358 retail outlets in seven states. Revenues from sales of non-petroleum merchandise through our retail outlets (including those we sold as part of the sale of the Northern-Tier assets until December 1, 2010) totaled $3,195 million in 2010, $3,109 million in 2009 and $2,838 million in 2008. The demand for gasoline is seasonal in a majority of Speedway’s markets, with the highest demand usually occurring during the summer driving season. Margins from the sale of merchandise and services tend to be less volatile than margins from the retail sale of gasoline and diesel fuel.

As of December 31, 2010, the Speedway segment’s retail outlets were located in the following states:

 

State

   Stores(1)  

Illinois

     94   

Indiana

     235   

Kentucky

     130   

Michigan

     306   

Ohio

     470   

West Virginia

     60   

Wisconsin

     63   
        

Total

     1,358   
        

 

(1)

Includes stores operating primarily under the Speedway ® and RichOil ® brand names.

 

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Pipeline Transportation

We own a system of pipelines through Marathon Pipe Line LLC (“MPL”) and Ohio River Pipe Line LLC (“ORPL”), both of which are wholly owned subsidiaries of ours. Our pipeline systems transport crude oil and refined products, primarily in the Midwest and Gulf Coast regions, to our refineries, our terminals and other pipeline systems. Our MPL and ORPL wholly owned and undivided interest common carrier systems consist of 1,707 miles of crude oil lines and 1,825 miles of refined product lines comprising 31 systems located in 11 states, as of December 31, 2010. The MPL common carrier pipeline network is one of the largest petroleum pipeline systems in the United States, based on total volume delivered. Our common carrier pipeline systems are subject to state and Federal Energy Regulatory Commission regulations and guidelines, including published tariffs for the transportation of crude oil and refined products. Third parties generated 11 percent of the crude oil and refined product shipments on our MPL and ORPL common carrier pipelines in 2010. Our MPL and ORPL common carrier pipelines transported the volumes shown in the following table for each of the last three years.

 

     Pipeline Barrels Handled (mbpd)  
         2010              2009              2008      

Crude oil trunk lines(1)

     1,204         1,113         1,216   

Refined products trunk lines

     968         953         960   
                          

Total

     2,172         2,066         2,176   
                          

 

(1) For all periods presented, excludes volumes transported on a crude oil system that was transferred from common carrier to private service in the fourth quarter of 2009.

As of December 31, 2010, we also own 175 miles of private crude oil pipelines and 846 miles of private refined products pipelines, and we lease 217 miles of common carrier refined product pipelines. We have partial ownership interests in several pipeline companies that have approximately 110 miles of crude oil pipelines and 3,600 miles of refined products pipelines, including about 970 miles operated by MPL. In addition, MPL operates our private pipelines and 985 miles of crude oil and 160 miles of natural gas pipelines owned by Marathon Oil. For a discussion of the agreements relating to these pipelines operated for Marathon Oil, see “Relationship with Marathon Oil after the Spin-Off—Historical Relationship with Marathon Oil.”

Our major refined product pipelines include the owned and operated Cardinal Products Pipeline and the Wabash Pipeline. The Cardinal Products Pipeline delivers refined products from Kenova, West Virginia, to Columbus, Ohio. The Wabash Pipeline system delivers product from Robinson, Illinois, to various terminals in the area of Chicago, Illinois. Other significant refined product pipelines owned and operated by MPL extend from: Robinson, Illinois to Louisville, Kentucky; Garyville, Louisiana to Zachary, Louisiana; and Texas City, Texas to Pasadena, Texas.

In addition, as of December 31, 2010, we had ownership interests in the following refined product pipelines:

 

   

65 percent undivided ownership interest in the Louisville-Lexington system, a petroleum products pipeline system extending from Louisville to Lexington, Kentucky;

 

   

60 percent interest in Muskegon Pipeline LLC, which owns a refined products pipeline extending from Griffith, Indiana to North Muskegon, Michigan;

 

   

50 percent interest in Centennial Pipeline LLC, which owns a refined products system connecting the Gulf Coast region with the Midwest market;

 

   

17 percent interest in Explorer Pipeline Company, a refined products pipeline system extending from the Gulf Coast to the Midwest; and

 

   

6 percent interest in Wolverine Pipe Line Company, a refined products pipeline system extending from Chicago, Illinois to Toledo, Ohio.

 

 

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Our major owned and operated crude oil lines run from: Patoka, Illinois to Catlettsburg Kentucky; Patoka, Illinois to Robinson, Illinois; Patoka, Illinois to Lima Ohio; Lima, Ohio to Canton, Ohio; Samaria, Michigan to Detroit, Michigan; and St. James, Louisiana to Garyville, Louisiana.

In addition, we currently have interests in the following crude oil pipelines:

 

   

51 percent interest in LOOP LLC, the owner and operator of the Louisiana Offshore Oil Port (“LOOP”), which is the only U.S. deepwater oil port capable of receiving crude oil from very large crude carriers, located 18 miles off the coast of Louisiana, and a crude oil pipeline connecting the port facility to storage caverns and tanks at Clovelly, Louisiana;

 

   

59 percent interest in LOCAP LLC, which owns a crude oil pipeline connecting LOOP and the Capline system;

 

   

33 percent undivided joint interest in the Capline system, a large-diameter crude oil pipeline extending from St. James, Louisiana to Patoka, Illinois; and

 

   

26 percent undivided joint interest in the Maumee Pipeline System, a large diameter crude oil pipeline extending from Lima, Ohio to Samaria, Michigan.

We plan to construct, by the end of 2012, a new section of pipeline connecting an existing pipeline to our Detroit refinery. This new connection will allow us to deliver additional supplies of Canadian crude to that refinery.

The above discussion contains forward looking statements with respect to the plans to construct a new section of pipeline. Factors which could affect these plans include transportation logistics, availability of materials and labor, unforeseen hazards such as weather conditions, delays in obtaining or conditions imposed by necessary government and third-party approvals, and other risks customarily associated with construction projects.

Competition and Market Conditions

The downstream petroleum business is highly competitive, particularly with regard to accessing crude oil and other feedstock supply and marketing refined products. We compete with a large number of other companies to acquire crude oil for refinery processing and in the distribution and marketing of a full array of petroleum products. Based upon the “The Oil & Gas Journal 2010 Worldwide Refinery Survey,” we ranked fifth among U.S. petroleum companies on the basis of U.S. crude oil refining capacity as of January 1, 2011. We compete in four distinct markets for the sale of refined products—wholesale, spot, branded and retail distribution. We believe we compete with about 56 companies in the sale of refined products to wholesale marketing customers, including private-brand marketers and large commercial and industrial consumers; about 91 companies in the sale of refined products in the spot market; ten refiners or marketers in the supply of refined products to refiner-branded dealers and jobbers; and approximately 250 retailers in the retail sale of refined products. In addition, we compete with producers and marketers in other industries that supply alternative forms of energy and fuels to satisfy the requirements of our industrial, commercial and individual consumers. We do not produce any of our crude oil.

We also face strong competition for sales of retail gasoline and merchandise. Our competitors include service stations and convenience stores operated by fully integrated major oil companies and their dealers and jobbers and other well-recognized national or regional retail outlets, often selling gasoline or merchandise at aggressively competitive prices. In recent years, several non-traditional retailers, such as supermarkets, club stores and mass merchants, have affected the convenience store industry with their entrance into the retail transportation fuel business. The National Petroleum News estimates such retailers had 12 percent of the U.S. gasoline market in 2010.

Our pipeline transportation operations are highly regulated, which affects the rates that our common carrier equity pipelines can charge for transportation services and the return we obtain from such pipelines.

 

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Market conditions in the oil and gas industry are cyclical and subject to global economic and political events and new and changing governmental regulations. Our operating results are affected by price changes in crude oil, natural gas and refined products, as well as changes in competitive conditions in the markets we serve. Price differentials between sweet and sour crude oil also affect our operating results.

Demand for gasoline, diesel fuel and asphalt is higher during the spring and summer months than during the winter months in most of our markets, primarily due to seasonal increases in highway traffic. As a result, the operating results for each of our segments for the first and fourth quarters are generally lower than for those in the second and third quarters of each calendar year.

Environmental Matters

Our management is responsible for ensuring that our operating organizations maintain environmental compliance systems that support and foster our compliance with applicable laws and regulations, and for reviewing our overall performance associated with various environmental compliance programs. We also have a Crisis Management Team, composed primarily of senior management, which oversees our response to any major environmental or other emergency incident involving us or any of our properties.

We believe it is likely that the scientific and political attention to issues concerning the extent, causes of and responsibility for climate change will continue, with the potential for further regulations that could affect our operations. Currently, various legislative and regulatory measures to address greenhouse gas are in various phases of review, discussion or implementation. The cost to comply with these laws and regulations cannot be estimated at this time, but could be significant. For additional information, see “Risk Factors—Risks Relating to Our Industry and Our Business—Changes in environmental or other laws or regulations may reduce our refining and marketing gross margins” and “—We will continue to incur substantial capital expenditures and operating costs as a result of compliance with, and changes in, environmental, health, safety and security laws and regulations, and, as a result, our business, financial condition, results of operations and cash flows could be materially and adversely affected.” Additionally, we continuously strive to improve operational and energy efficiencies through resource and energy conservation where practicable and cost effective.

Our operations are also subject to numerous other laws and regulations relating to the protection of the environment. These environmental laws and regulations include, among others, the Clean Air Act with respect to air emissions, the Clean Water Act (“CWA”) with respect to water discharges, the Resource Conservation and Recovery Act (“RCRA”) with respect to solid and hazardous waste treatment, storage and disposal, CERCLA with respect to releases and remediation of hazardous substances and the Oil Pollution Act of 1990 (“OPA-90”) with respect to oil pollution and response. In addition, many states where we operate have their own similar laws dealing with similar matters. New laws are being enacted and regulations are being adopted by various regulatory agencies on a continuing basis, and the costs of compliance with these new rules can only be broadly appraised until their implementation becomes more accurately defined. In some cases, existing environmental laws can impose liability for the entire cost of cleanup of a contaminated site on any responsible party without regard to negligence or fault and impose liability on us for the conduct of others or conditions others have caused, or for our acts that complied with all applicable requirements when we performed them. The ultimate cost of cleanup under such laws can be difficult to accurately predict. In other cases, the ultimate impact of complying with existing laws and regulations may not be clearly known or determinable because certain implementing regulations for some environmental laws have not yet been finalized or, in some instances, are undergoing revision. These environmental laws and regulations, particularly the 1990 Amendments to the Clean Air Act and its implementing regulations, new water quality requirements and stricter fuel regulations, could result in increased capital, operating and compliance costs.

For a discussion of environmental capital expenditures and costs of compliance for air, water, solid waste and remediation, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations Environmental Matters, Litigation and Contingencies.”

 

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Air

We are subject to substantial requirements in connection with air emissions from our operations. The U.S. EPA issued an “endangerment finding” in 2009 to the effect that greenhouse gases contribute to air pollution and endanger public health and welfare. Related to this endangerment finding, in April of 2010, the EPA finalized a greenhouse gas emissions standard for mobile sources (cars and light duty vehicles). The endangerment finding along with the mobile source standard and EPA’s determination that greenhouse gases are subject to regulation under the Clean Air Act, is expected to lead to widespread regulation of stationary sources of greenhouse gas emissions. As a result, the EPA has issued a so-called “tailoring rule” to limit the applicability of the EPA’s major permitting programs to larger sources of greenhouse gas emissions, such as our refineries and a few large production facilities. Although legal challenges have been filed or are expected to be filed against these EPA actions, no final court decisions are expected for at least a year. The EPA has also issued its plan for establishing greenhouse gas pollution standards under the Clean Air Act in 2011. Under this plan, the EPA is expected to propose standards for refineries in December 2011, and is expected to issue final standards in November 2012. Congress may continue to consider legislation on greenhouse gas emissions, which may include a delay in the implementation of greenhouse gas regulations by the EPA.

Although there may be adverse financial impact (including compliance costs, potential permitting delays and potential reduced demand for crude oil or certain refined products) associated with any legislation, regulation or other action, the extent and magnitude of that impact cannot be reliably or accurately estimated due to the fact that requirements have only recently been adopted and the present uncertainty regarding the additional measures and how they will be implemented.

Of particular significance to our refining operations are EPA Mobile Source Air Toxics II (“MSAT II”) regulations that require reduced benzene levels in refined products. We have finalized our strategic approach to comply with MSAT II regulations and updated the project cost estimates to comply with these requirements. We now estimate that we may spend approximately $650 million over a four-year period that began in 2008, reduced from our previous projection of approximately $1 billion over a six-year period. The overall cost reduction for MSAT II compliance is a result of lower costs for several projects along with our finalization of the most appropriate MSAT II compliance approach for our refineries. Our actual MSAT II expenditures since inception have totaled $522 million through December 31, 2010. We expect total year 2011 spending will be approximately $100 million.

The EPA is in the process of implementing regulations to address the National Ambient Air Quality Standards (the “NAAQS”) for fine particulate emissions and ozone. In connection with these standards, the EPA will designate certain areas as “nonattainment,” meaning that the air quality in such areas does not meet the NAAQS. To address these nonattainment areas, the EPA proposed a rule in 2004 called the Interstate Air Quality Rule (the “IAQR”) that would require significant emissions reductions in numerous states. The final rule, promulgated in 2005, was renamed the Clean Air Interstate Rule (the “CAIR”). While the EPA expects that states will meet their CAIR obligations by requiring emissions reductions from electric generating units, states were to have the final say on what sources they regulate to meet attainment criteria. Significant uncertainty in the final requirements of this rule resulted from litigation (State of North Carolina, et al. v. EPA). In July 2008, the U.S. Court of Appeals for the District of Columbia Circuit vacated the CAIR in its entirety and remanded it to EPA to promulgate a rule consistent with the Court’s opinion. In December 2008, the Court modified its July ruling to leave the CAIR in effect until EPA develops a new rule and control program. The EPA proposed the new Clean Air Transport Rule (“CATR”) on August 2, 2010. The proposed rule is directed at electric generating units, not refineries, and is expected to be finalized in 2011. However, we cannot reasonably estimate any final financial impact of the state actions to implement the CATR until the EPA has issued a final rule and states have taken further action to implement that rule.

The EPA is reviewing and is proposing to revise, all NAAQS for criteria air pollutants. The EPA promulgated a revised ozone standard in March 2008, and commenced a multi-year process to develop the implementing rules required by the Clean Air Act. On September 16, 2009, the EPA announced that they would

 

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reconsider the level of the ozone standard. On December 8, 2009, the EPA announced that the final ozone NAAQS rule will be completed by July 29, 2011, which is later than originally anticipated by the EPA. Also, on July 15, 2009, the EPA proposed a new short-term nitrogen dioxide standard. The final standard was issued January 22, 2010. In addition, on December 8, 2009, the EPA proposed a new short term standard for sulfur dioxide. This final standard was published on June 22, 2010. We cannot reasonably estimate the final financial impact of these revised NAAQS standard until the implementing rules are established and judicial challenges over the revised NAAQS standards are resolved.

In 2007, the Court vacated the EPA’s Boiler and Process Heater Maximum Achievable Control Technology rule (“Boiler MACT”). As a result, the EPA finalized the Boiler MACT rule in February 2011. The EPA concurrently announced that it would reconsider most provisions of the rule. We cannot reasonably estimate the financial impact of the Boiler MACT rule until the reconsideration is finalized.

Water

We maintain numerous discharge permits as required under the National Pollutant Discharge Elimination System program of the CWA and have implemented systems to oversee our compliance efforts. In addition, we are regulated under OPA-90, which amended the CWA. Among other requirements, OPA-90 requires the owner or operator of a tank vessel or a facility to maintain an emergency plan to respond to releases of oil or hazardous substances. Also, in case of any such release, OPA-90 requires the responsible company to pay resulting removal costs and damages. OPA-90 also provides for civil penalties and imposes criminal sanctions for violations of its provisions.

Additionally, OPA-90 requires that new tank vessels entering or operating in U.S. waters be double-hulled and that existing tank vessels that are not double-hulled be retrofitted or removed from U.S. service, according to a phase-out schedule. All of the barges used for river transport of our raw materials and refined products meet the double-hulled requirements of OPA-90. We operate facilities at which spills of oil and hazardous substances could occur. Some coastal states in which we operate have passed state laws similar to OPA-90, but with expanded liability provisions, including provisions for cargo owner responsibility as well as ship owner and operator responsibility. We have implemented emergency oil response plans for all of our components and facilities covered by OPA-90 and we have established Spill Prevention, Control and Countermeasures (“SPCC”) plans for facilities subject to CWA SPCC requirements.

Solid Waste

We continue to seek methods to minimize the generation of hazardous wastes in our operations. RCRA establishes standards for the management of solid and hazardous wastes. Besides affecting waste disposal practices, RCRA also addresses the environmental effects of certain past waste disposal operations, the recycling of wastes and the regulation of underground storage tanks (“USTs”) containing regulated substances. We have ongoing RCRA treatment and disposal operations at one of our facilities and primarily utilize offsite third-party treatment and disposal facilities. Ongoing RCRA-related costs, however, are not expected to be material to our results of operations or cash flows.

Remediation

We own or operate certain retail outlets where, during the normal course of operations, releases of refined products from USTs have occurred. Federal and state laws require that contamination caused by such releases at these sites be assessed and remediated to meet applicable standards. The enforcement of the UST regulations under RCRA has been delegated to the states, which administer their own UST programs. Our obligation to

 

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remediate such contamination varies, depending on the extent of the releases and the stringency of the laws and regulations of the states in which we operate. A portion of these remediation costs may be recoverable from the appropriate state UST reimbursement funds once the applicable deductibles have been satisfied. We also have ongoing remediation projects at a number of our refinery, terminal and pipeline locations. Penalties or other sanctions may be imposed for noncompliance. See “—Legal Proceedings—Environmental Proceedings” for a discussion of these sites.

Mileages Standards and Renewable Fuels Requirements

In 2007, the U.S. Congress passed the Energy Independence and Security Act (“EISA”), which, among other things, sets a target of 35 miles per gallon for the combined fleet of cars and light trucks in the United States by model year 2020, and contains a second Renewable Fuel Standard (the “RFS2”). The EPA announced the final RFS2 regulations on February 4, 2010. The RFS2 required 12.95 billion gallons of renewable fuel usage in 2010, increasing to 36.0 billion gallons by 2022. In the near term, the RFS2 will be satisfied primarily with fuel ethanol blended into gasoline. The RFS2 presents production and logistic challenges for both the fuel ethanol and petroleum refining and marketing industries. The RFS2 has required, and will likely in the future continue to require, additional capital expenditures or expenses by us to accommodate increased fuel ethanol use. Within the overall 36.0 billion gallon RFS2, EISA establishes an advanced biofuel RFS2 that begins with 0.95 billion gallons in 2010 and increases to 21.0 billion gallons by 2022. Subsets within the advanced biofuel RFS2 include 1.15 billion gallons of biomass-based diesel in 2010 (due to combining the 2009 and 2010 volumes), which is capped at 1.0 billion gallons starting in 2012, and 0.1 billion gallons of cellulosic biofuel in 2010, increasing to 16.0 billion gallons by 2022. The EPA has determined that 0.1 billion gallons of cellulosic biofuel will not be produced in 2010 and has lowered the requirement to 5.0 million gallons. The advanced biofuels programs will present specific challenges in that we may have to enter into arrangements with other parties to meet our obligations to use advanced biofuels, including biomass-based diesel and cellulosic biofuel, with potentially uncertain supplies of these new fuels.

On October 13, 2010, the EPA issued a partial waiver decision under the Clean Air Act to allow for an increase in the amount of ethanol permitted to be blended into gasoline from 10 percent (“E10”) to 15 percent (“E15”) for 2007 and newer light-duty motor vehicles. Then on January 21, 2011, the EPA issued a second waiver for the use of E15 in vehicles model year 2001-2006. There are numerous issues, including state and federal regulatory issues, that would need to be addressed before E15 can be marketed for use in any traditional gasoline engines.

There will be compliance costs and uncertainties regarding how we will comply with the various requirements contained in EISA and related regulations. We may experience a decrease in demand for refined petroleum products due to an increase in combined fleet mileage or due to refined petroleum products being replaced by renewable fuels.

Legal Proceedings

We are the subject of, or a party to, a number of pending or threatened legal actions, contingencies and commitments involving a variety of matters, including laws and regulations relating to the environment. Some of these matters are discussed below. The ultimate resolution of these contingencies could, individually or in the aggregate, be material. However, we believe that our company will remain a viable and competitive enterprise even though it is possible that some or all of these contingencies could be resolved unfavorably.

Kentucky Emergency Pricing Litigation

In May 2007, the Kentucky Attorney General filed a lawsuit against us and Marathon Oil for alleged violations of Kentucky’s emergency pricing and consumer protection laws following Hurricanes Katrina and Rita in 2005. The lawsuit alleges that we overcharged customers by $89 million during September and October 2005. The complaint seeks disgorgement of these sums, as well as penalties, under Kentucky’s emergency pricing and consumer protection laws. We are vigorously defending this litigation. If it is resolved unfavorably, it could

 

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materially impact our combined results of operations, financial position or cash flows. We believe that this is the first lawsuit for damages and injunctive relief under the Kentucky emergency pricing laws to progress this far, and it contains many novel issues. The ultimate outcome of this lawsuit, including any financial effect on us, remains uncertain. Management does not believe an estimate of a reasonably possible loss (or range of loss) can be made for this lawsuit at this time.

MTBE Litigation

We, along with other refining and marketing companies, settled a number of lawsuits pertaining to gasoline containing MTBE in 2008. We settled additional MTBE-related lawsuits in 2009 and 2010. As of December 31, 2010, we are a defendant, along with other refining and marketing companies, in seven lawsuits pending in five states, in which the plaintiffs seek to recover damages alleged to result from MTBE contamination. Like the lawsuits we previously settled, these lawsuits are consolidated in a multi-district litigation (“MDL”) in the Southern District of New York for pretrial proceedings. Plaintiffs allege damages to water supply wells from contamination of groundwater by MTBE, similar to the damages claimed in the lawsuits previously settled. In addition, in one of the lawsuits the New Jersey Department of Environmental Protection also seeks to recover the cost of remediating MTBE contamination of ground and surface water not being used for public water supply purposes, as well as natural resources damages allegedly resulting from such contamination. We are vigorously defending these lawsuits. We do not expect our share of liability for these lawsuits to materially impact our combined results of operations, financial position or cash flows. We expect additional lawsuits alleging similar damages against us in the future, but likewise do not expect them to materially impact our combined results of operations, financial position or cash flows, based on our experience and amounts paid in connection with other MTBE lawsuits. However, the ultimate outcome of the pending or future MTBE lawsuits, including any financial effect on us, remains uncertain. The pending cases are in various phases of discovery, and our management does not believe an estimate of a reasonably possible loss (or range of loss) can be made for these lawsuits and future lawsuits at this time. We voluntarily discontinued distributing MTBE-containing gasoline in, at the latest, 2002.

Environmental Proceedings

The following is a summary of certain proceedings involving us that were pending or contemplated as of December 31, 2010 under federal and state environmental laws. Except as described herein, it is difficult to predict accurately the ultimate outcome of these matters; however, our management’s belief set forth in the first paragraph in this “Legal Proceedings” discussion takes such matters into account.

Claims under CERCLA and similar state acts have been raised with respect to the clean-up of various waste disposal and other sites. CERCLA is intended to facilitate the clean-up of hazardous substances without regard to fault. Potentially responsible parties (“PRPs”) for each site include present and former owners and operators of, transporters to and generators of the substances at the site. Liability is strict and can be joint and several. Because of various factors including the difficulty of identifying the responsible parties for any particular site, the complexity of determining the relative liability among them, the uncertainty as to the most desirable remediation techniques and the amount of damages and clean-up costs and the time period during which such costs may be incurred, we are unable to reasonably estimate our ultimate cost of compliance with CERCLA; however, we do not believe such costs will be material to our business, financial condition, results of operations or cash flows.

The projections of spending for and/or timing of completion of specific projects provided in the following paragraphs are forward-looking statements. These forward-looking statements are based on certain assumptions, including, but not limited to, the factors provided in the immediately preceding paragraph. To the extent that these assumptions prove to be inaccurate, future spending for and/or timing of completion of environmental projects may differ materially from those stated in the forward-looking statements.

As of December 31, 2010, we were identified as a PRP at a total of six CERCLA waste sites. Based on currently available information, we believe that our liability for clean-up and remediation costs in connection

 

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with these sites will not be material to our financial condition or results of operations. In addition, there are two sites for which we have received information requests or other indications that we may be a PRP under CERCLA, but for which sufficient information is not presently available to confirm the existence of liability.

There are various other sites where remediation is being sought under other environmental statutes, both federal and state, or where private parties are seeking remediation through discussions or litigation. Based on currently available information, we believe our liability for clean-up and remediation costs in connection with these sites will not be material to our financial condition or results of operations. With respect to 14 of these sites, Ashland retains responsibility to us for remediation, subject to caps and other requirements contained in the agreements with Ashland related to the acquisition of Ashland’s minority interest in Marathon Petroleum Company LLC in 2005. We estimate that we will be responsible for $11.4 million in remediation costs at these sites which will not be reimbursed by Ashland, and we have included this amount in our accrued environmental remediation liabilities. We are not subject to any pending proceeding brought by any governmental authority relating to any of the sites referred to in this paragraph or any of the CERCLA sites referred to above and involving any monetary fine, penalty or sanction.

We are subject to a pending enforcement matter with the Illinois Environmental Protection Agency and the Illinois Attorney General’s Office since 2002 concerning self-reporting of possible emission exceedences and permitting issues related to storage tanks at the Robinson, Illinois refinery. There were no developments in this matter in 2010.

During 2001, we entered into a New Source Review consent decree and settlement of alleged Clean Air Act and other violations with the U.S. EPA covering all of our refineries. The settlement committed us to specific control technologies and implementation schedules for environmental expenditures and improvements to our refineries over approximately an eight-year period, which are now substantially complete. In addition, we have been working on certain agreed-upon supplemental environmental projects as part of this settlement of an enforcement action for alleged Clean Air Act violations and these have been completed. As part of this consent decree, we were required to conduct evaluations of refinery benzene waste air pollution programs (benzene waste “NESHAPS”). Pursuant to a modification to our New Source Review consent decree, we have agreed with the U.S. Department of Justice and the EPA to pay a civil penalty of $408,000 and conduct supplemental environmental projects of approximately $1 million, as part of a settlement of an enforcement action for alleged Clean Air Act violations relating to benzene waste NESHAPS. A modification to our New Source Review consent decree was finalized as of June 30, 2010, and the civil penalty amount has been paid.

The U.S. Occupational Safety and Health Administration (“OSHA”) previously announced a National Emphasis Program to inspect most domestic oil refineries. The inspections began in 2007 and focused on compliance with the OSHA Process Safety Management requirements. OSHA or state-equivalent agencies have conducted inspections at the Canton, Robinson, Catlettsburg, Detroit and Texas City refineries with agreed–to penalties of $321,500 and $135,000 imposed in Canton and Texas City, respectively. No penalties were imposed as a result of the other inspections. An inspection occurred at Garyville in 2010, however no enforcement action by OSHA or equivalent state agency has resulted.

The U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration (“PHMSA”) issued a Notice of Probable Violation, Proposed Civil Penalty, and Proposed Compliance Order to Marathon Pipe Line LLC (“MPL”) related to the March 10, 2009 incident at St. James, Louisiana. PHMSA has proposed a civil penalty in the amount of approximately $1 million. PHMSA granted MPL extensions in which to respond to the Notice of Probable Violation. MPL’s response is due January 28, 2011.

In January 2011, the EPA notified us of 18 alleged violations of various statutory and regulatory provisions related to motor fuels, some of which we had previously self-reported to the EPA. No formal enforcement action has been commenced and no demand for penalties has been asserted by the EPA in connection with these alleged

 

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violations. However, it is possible that the EPA could seek penalties in excess of $100,000 in connection with one or more of the alleged violations. In March 2011, we met with representatives of the EPA to respond to their request for additional information concerning one of the alleged violations.

Employees

We had approximately 25,946 active employees as of December 31, 2010. Of that number, approximately 19,147 were employees of Speedway, most of whom were employed at our Speedway ® retail outlets, and approximately 2,841 were employees working in the operations conducted through the Northern-Tier Assets, which we sold in December, 2010. Under the arrangements relating to the sale of the Northern-Tier Assets, we generally have agreed to continue to employ these persons for transition periods that are expected to extend until various dates in 2011, when their employment will be transitioned to the buyer or its subsidiaries, as applicable.

Certain hourly employees at our Catlettsburg and Canton refineries are represented by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union under labor agreements that are scheduled to expire in January 2012. The same union represents certain hourly employees at our Texas City refinery under a labor agreement that is scheduled to expire in March 2012. The International Brotherhood of Teamsters represents certain hourly employees at our Detroit refinery under a labor agreement that is scheduled to expire in January 2014.

Trademarks, Patents and Licenses

Our Marathon ® trademark is material to the conduct of our refining and marketing operations, and our Speedway ® trademark is material to the conduct of our retail marketing operations. We currently hold a number of U.S. and foreign patents and have various pending patent applications. Although in the aggregate our patents and licenses are important to us, we do not regard any single patent or license or group of related patents or licenses as critical or essential to our business as a whole. In general, we depend on our technological capabilities and the application of know-how rather than patents and licenses in the conduct of our operations.

 

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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS

In connection with the spin-off, we intend to enter into several agreements with Marathon Oil to define our ongoing relationship with Marathon Oil after the spin-off. These agreements will, among other things, allocate responsibility for obligations arising before and after the distribution date, including, among others, obligations relating to our employees, various transition services and taxes. For more information about those agreements and our historical relationship with Marathon Oil, see “Relationship with Marathon Oil After the Spin-Off.”

Grant Heminger is Vice President of marketing for our Speedway subsidiary, and he has been employed by us for 21 years. Grant Heminger is the brother of Gary Heminger, President of MPC. In 2009, Grant Heminger was paid cash compensation in the amount of $214,114 and received a stock option grant of 4,950 shares at an exercise price of $29.24. He also received education reimbursements and tuition aid in the amount of $1,040.

Darla I. Burns is a senior accounting analyst for one of our wholly owned subsidiaries, Marathon Petroleum Company LP, and she has been employed by us for 24 years. Darla Burns is the sister of Gary Heminger. In 2009, Ms. Burns was paid cash compensation in the amount of $119,522 and also received education reimbursements and tuition aid in the amount of $10,300.

Related Person Transactions Policies and Procedures

We expect that our board of directors will adopt a policy, which will be made available on our Web site, that will require our executive officers, directors and nominees for director to promptly notify our Corporate Secretary in writing of any transaction in which:

 

   

the amount exceeds $120,000;

 

   

MPC is, was or is proposed to be a participant; and

 

   

such person or such person’s immediate family members or related persons, has, had or may have a direct or indirect material interest.

We refer to any such transaction as a related person transaction.

Subject to certain exceptions to be delineated in the policy, related person transactions will be required to be brought to the attention of the Corporate Governance and Nominating Committee of our board of directors, or any other committee designated by our board of directors that consists solely of independent directors, for an assessment of whether the transaction or proposed transaction should be permitted to proceed. In deciding whether to approve or ratify the related person transaction, the committee would be required to consider all relevant facts and circumstances, including the materiality of the related person’s direct or indirect interest in the transaction, the materiality of the related person transaction to us, the impact of the related person transaction on the related person, the impact of the related person transaction on the related person’s independence and the actual or apparent conflict of interest of the related person participating in the related person transaction. If the committee determines that the related person has a direct or indirect material interest in any such transaction, the committee will be required to review and approve, ratify or disapprove the related person transaction.

In addition to this policy, our Code of Business Conduct and our Code of Ethics for Senior Financial Officers—both of which will be available on our Web site – will have specific provisions addressing actual and potential conflicts of interest. Our Code of Business Conduct will provide that all directors, officers and employees must ensure that business decisions they make and actions they take on behalf of our company are not influenced by personal considerations or personal relationships and will require appropriate disclosures of potential conflicts of interest. Similarly, the Code of Ethics for Senior Financial Officers will require our chief executive officer, chief financial officer and chief accounting officer to act with honesty and integrity in the handling of apparent conflicts of interest between personal and professional relationships.

 

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RELATIONSHIP WITH MARATHON OIL AFTER THE SPIN-OFF

Historical Relationship with Marathon Oil

We are currently a wholly owned subsidiary of Marathon Oil. Our company was incorporated in Delaware as of November 9, 2009, in connection with an internal restructuring. Marathon Oil will transfer to us the capital stock or other equity interests in subsidiaries that own generally all the assets, and are obligated on generally all the liabilities, comprising Marathon Oil’s refining, marketing and transportation business, which Marathon Oil intends to separate from its other operations. As a result of these historical parent-subsidiary relationships, in the ordinary course of our business, we and our subsidiaries have received various services provided by Marathon Oil and some of its other subsidiaries, including accounting, treasury, tax, legal, risk management, public affairs, human resources, procurement, information technology and other services. We have also purchased 5% or less of our net crude oil needs from Marathon Oil at prices we believe to be equivalent to arm’s-length market prices. Our historical combined financial statements include allocations by Marathon Oil of a portion of its overhead costs related to those services. These cost allocations have been determined on a basis that we and Marathon Oil consider to be reasonable reflections of the use of those services.

We also have historical agreements with Marathon Oil relating to the operation of certain pipelines in which it owns an interest. We provide Department of Transportation (“DOT”) compliance oversight for several of these pipelines that are DOT-regulated pipelines, and operational and maintenance functions for other pipelines, under agreements that are either terminable by us with six or 12 months notice or are scheduled to terminate no later than June 30, 2014. Under these agreements, we are reimbursed certain costs and receive management fees from Marathon Oil of less than $5 million annually.

Marathon Oil’s Distribution of Our Stock

Marathon Oil will be our sole stockholder until completion of the spin-off. In the spin-off, Marathon Oil is distributing its entire equity interest in us to its stockholders in a transaction that is intended to be tax free to Marathon Oil and its U.S. stockholders. The spin-off will be subject to a number of conditions, some of which are more fully described above under “The Spin-Off—Spin-Off Conditions and Termination.”

Agreements Between Marathon Oil and Us

In the discussion that follows, we have described the material provisions of agreements we intend to enter into with Marathon Oil. The description of those agreements is not complete and is qualified by reference to the terms of the agreements, the forms of which are included as exhibits to the registration statement on Form 10 of which this information statement is a part. We encourage you to read the full text of those agreements. The terms of those agreements have not yet been finalized; changes, some of which may be material, may be made prior to the spin-off. We will enter into those agreements prior to the completion of the spin-off in the context of our relationship as a wholly owned subsidiary of Marathon Oil. Some of the terms of those agreements may not be the same as those we could obtain in arm’s-length negotiations with unaffiliated third parties.

Separation and Distribution Agreement

The separation and distribution agreement will contain the key provisions relating to the spin-off, including provisions relating to the principal intercompany transactions required to effect the spin-off, the conditions to the spin-off and provisions governing the relationships between Marathon Oil and us after the spin-off.

Reorganization, Distribution and Conditions to the Distribution. The separation and distribution agreement is expected to provide that, on or prior to the record date for the spin-off:

 

   

Marathon Oil will complete a multi-step reorganization of its subsidiaries, with the result that we will own, directly or indirectly, all the outstanding equity interests in Marathon Petroleum Company LP and substantially all other subsidiaries of Marathon Oil that are or have been engaged in Marathon Oil’s refining, marketing and transportation business;

 

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we will effectuate a recapitalization pursuant to which all of the existing shares of our common stock are exchanged for or converted into a number of shares of our common stock sufficient to effect the distribution;

 

   

all intercompany loans between Marathon Oil and us will be repaid;

 

   

Marathon Oil will use commercially reasonable efforts to have us released from all financial instruments that are primarily for its benefit and on which we are primarily or secondarily liable, and we will use commercially reasonable efforts to have Marathon Oil released from all financial instruments that are primarily for our benefit and on which Marathon Oil is primarily or secondarily liable.

The separation and distribution agreement will also govern the ownership of intellectual property between us and Marathon Oil as of the distribution date.

Marathon Oil’s transfer to us of the subsidiaries that operate our business and related assets will occur prior to the distribution of our common stock to Marathon Oil’s stockholders. The transfer by Marathon Oil will be made on an “as is, where is” basis without any representations or warranties, and we will bear the economic and legal risks of the ownership and operation of the downstream business both before and after the distribution date. Marathon Oil generally will not retain any of the liabilities of the subsidiaries contributed to us or liabilities associated with the related assets contributed to us and we and the contributed subsidiaries will agree to perform and fulfill all the liabilities arising out of the operation of the downstream business.

The conditions to the spin-off, which will be set forth in the separation and distribution agreement, are summarized under “The Spin-Off—Spin-Off Conditions and Termination.” Marathon Oil has reserved the right to determine whether to proceed with the distribution of our common stock to Marathon Oil’s stockholders, the timing of the distribution and whether to amend or modify the terms of the distribution and the related transactions at any time prior to the distribution date.

Release of Liabilities, Indemnification and Insurance. The separation and distribution agreement will contain provisions regarding the release of intercompany claims and liabilities, except liabilities specifically provided for in the separation and distribution agreement or the other agreements entered into in connection with the spin-off which are described below, intercompany account liabilities, and liabilities that, if released, would release third parties. In addition, the separation and distribution agreement will provide for cross-indemnities between Marathon Oil and us. In general, Marathon Oil will be required to indemnify us for any liabilities relating to Marathon Oil’s historical oil and gas exploration and production operations, oil sands mining operations and integrated gas operations, and we will be required to indemnify Marathon Oil for any liabilities relating to Marathon Oil’s historical downstream operations. The separation and distribution agreement will also provide for the allocation of, or otherwise address, benefits between Marathon Oil and us under existing insurance policies following the spin-off for occurrences prior to the spin-off and will set forth procedures for the administration of insured claims.

Nonsolicitation of Employees and Maintenance of Confidentiality. We and Marathon Oil will each agree, subject to certain exceptions, not to solicit for employment any employee of the other party for a period of one year following the spin-off. In addition, the separation and distribution agreement will provide for each of Marathon Oil and us to preserve the confidentiality of all confidential or proprietary information of the other party for five years following the spin-off, subject to customary exceptions, including disclosures required by law, court order or government regulation.

Payment of Expenses. Except as provided in the separation and distribution agreement or in any related agreement, each of Marathon Oil and MPC will pay all third-party fees, costs and expenses paid or incurred by it in connection with the preparation, execution, delivery and implementation of the separation and distribution agreement, any related agreement, our registration statement on Form 10, the distribution and the completion of

 

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the transactions contemplated thereby, provided that Marathon Oil generally will pay any non-recurring third-party fees, costs and expenses in connection with the foregoing incurred prior to the spin-off that Marathon Oil deems necessary to effect the spin-off, such as investment banker fees, outside legal and accounting fees relating to the spin-off, office move costs, costs to separate information systems and temporary consulting costs, and we generally will pay any non-recurring third-party fees, costs and expenses in connection with the foregoing incurred prior to the spin-off that are expected to benefit us following the spin-off in the ordinary course of business, such as recruiting and relocation expenses associated with hiring key senior management positions new to us, other employee compensation expenses and temporary labor used to develop ongoing processes. Except as provided in the separation and distribution agreement or any related agreement, all fees, costs and expenses incurred by a party after the spin-off will be borne by that party.

Dispute Resolution. In the event of a dispute between Marathon Oil and us under the separation and distribution agreement or any of the other agreements entered into in connection with the spin-off, we have agreed to submit the dispute: first, to negotiation between our senior executives; second, to mediation; and third, to binding arbitration.

Tax Sharing Agreement

On or before the distribution date, we and Marathon Oil will enter into a tax sharing agreement that will govern the respective rights, responsibilities and obligations of Marathon Oil and us with respect to taxes and tax benefits, the filing of tax returns, the control of audits and other tax matters. References in this summary description of the tax sharing agreement to the terms “tax” or “taxes” mean taxes as well as any interest, penalties, additions to tax or additional amounts in respect of such taxes.

The results of our operations and those of our eligible subsidiaries are currently reflected in Marathon Oil’s consolidated return for U.S. federal income tax purposes and certain consolidated, combined and unitary returns for state tax purposes. However, for periods (or portions thereof) beginning after the spin-off, we will not join with Marathon Oil in the filing of any income tax returns.

Under the tax sharing agreement, except as described below, Marathon Oil will be responsible for: (1) all U.S. federal, state, local and foreign income taxes attributable to Marathon Oil or any of its subsidiaries for any tax period that begins after the date of the spin-off (and for any tax period that begins on or before and ends after the date of the spin-off, for the portion of that period after the date of the spin-off), other than such taxes arising as a result of the spin-off and related internal restructuring of Marathon Oil; and (2) all taxes arising as a result of the spin-off (or certain related transactions) to the extent such taxes arise as a result of any breach on or after the date of the spin-off of any representation, warranty, covenant or other obligation of Marathon Oil or of a subsidiary of Marathon Oil made in connection with the issuance of the private letter ruling or the tax opinion relating to, among other things, the qualification of the spin-off as a transaction under Sections 368(a) and 355 of the Code for U.S. federal income tax purposes or in the tax sharing agreement. We will be responsible for all taxes attributable to us or one of our subsidiaries, whether accruing before, on or after the spin-off, including: (1) all taxes attributable to us or any of our subsidiaries for any tax period that ends on or before the date of the spin-off (and for any tax period that begins on or before and ends after the date of the spin-off, for the portion of that period on or before the date of the spin-off), other than such taxes arising as a result of the spin-off; (2) all taxes arising as a result of the spin-off (or certain related transactions) to the extent such taxes are attributable to actions taken by us or our affiliates or any breach by us or our affiliates any representation, warranty, covenant or other obligation set forth in the private letter ruling, the tax opinion or tax sharing agreement; and (3) certain tax liabilities associated with the 2005 transactions in which we acquired the minority interest in our refining joint venture from Ashland.

We will be responsible for preparing and filing all income tax returns that include us or one of our subsidiaries other than any consolidated, combined or unitary income tax return that includes us or one of our subsidiaries, on the one hand, and Marathon Oil or one of its subsidiaries (other than us or any of our

 

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subsidiaries), on the other hand, and we will have the authority to respond to and conduct all tax proceedings, including tax audits, involving any taxes or any deemed adjustment to taxes reported on such tax returns. Marathon Oil will be responsible for preparing and filing all consolidated, combined or unitary income tax returns that include us or one of our subsidiaries, on the one hand, and Marathon Oil or one of its subsidiaries (other than us or any of our subsidiaries), on the other hand, and Marathon Oil will have the authority to respond to and conduct all tax proceedings, including tax audits, relating to taxes or any deemed adjustment to taxes reported on such tax returns. We will be entitled to participate in any tax proceeding involving any taxes or deemed adjustment to taxes for which we may be liable under the tax sharing agreement. The tax sharing agreement further provides for cooperation between Marathon Oil and our company with respect to tax matters, the exchange of information and the retention of records that may affect the tax liabilities of the parties to the agreement.

The tax sharing agreement will contain covenants intended to protect the tax-free status of the spin-off and certain internal restructuring transactions. These covenants may restrict our ability to pursue strategic or other transactions that otherwise could maximize the value of our business and may discourage or delay a change of control that you may consider favorable. In general, we will covenant that, during the two-year period immediately after the spin-off:

 

   

We will agree not to sell or otherwise issue, or redeem or otherwise purchase any of our stock or rights to acquire such stock except for certain acquisitions of stock by employees or other persons in connection with the performance of services and certain acquisitions of stock by retirement plans.

 

   

We will not solicit any person to make a tender offer for, or otherwise acquire or sell, our stock or rights to acquire our stock, or participate in or support any unsolicited tender offer for, or other acquisition, issuance or disposition of, our stock or rights to acquire such stock if, in either case, individually or in the aggregate, such transaction together with any transaction occurring within the period beginning two years before the spin-off and any other transaction which is part of a plan or series of related transactions that includes the spin-off, could result in one or more persons acquiring, directly or indirectly, 40% or more, by vote or value, of our stock or stock of any successor of ours.

 

   

We will not sell, transfer, or otherwise dispose of more than 50 percent of the assets used in our refining, marketing and transportation businesses, except in the ordinary course of business.

 

   

We will not, and will cause our subsidiaries to not, agree to liquidate or engage in any transaction involving a merger, consolidation or other reorganization; provided, however, that certain mergers or liquidations of our direct or indirect wholly owned subsidiaries with and into us or with our other direct or indirect wholly owned subsidiaries generally will be permitted.

Notwithstanding the foregoing, we will be permitted to take any of the actions restricted by such covenants if Marathon Oil provides us with prior written consent for such action, or we provide Marathon Oil with a private letter ruling or rulings from the IRS, or an unqualified opinion of counsel, in either case acceptable to Marathon Oil, to the effect that such action will not affect the tax-free nature of the spin-off (and certain internal restructuring transactions), but we will remain liable for any liabilities, taxes and other charges imposed on Marathon Oil as a result of the spin-off (and certain related transactions) failing to qualify as tax-free transactions as a result of any such action.

Though valid as between the parties, the tax sharing agreement is not binding on the IRS and does not affect the several liability of Marathon Oil and us for all U.S. federal taxes of the Marathon Oil consolidated group relating to periods before the distribution date.

Employee Matters Agreement

On or before the distribution date, we and Marathon Oil will enter into an employee matters agreement, which will provide that each of Marathon Oil and MPC will have responsibility for its own employees and

 

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compensation plans. The agreement will contain provisions concerning benefit protection for Marathon Oil employees who become our employees prior to December 31, 2011, treatment of holders of Marathon Oil stock options, stock appreciation rights, restricted stock and restricted stock units, and performance units and cooperation between us and Marathon Oil in the sharing of employee information and maintenance of confidentiality. The terms described below are based on our current expectations but are subject to approval by the compensation committee of Marathon Oil’s board of directors or by Marathon Oil’s board of directors.

Treatment of Retirement, Health and Welfare Plans . In general, our employees currently participate in various retirement, health and welfare, and other employee benefit plans. Following the spin-off, we anticipate that our employees will generally continue to participate in the same plans or will participate in similar plans and arrangements that we will establish and maintain. Pursuant to the employee matters agreement, effective as of the distribution date, we and Marathon Oil will each retain responsibility for our respective employees and compensation plans.

In several locations outside the United States, it likely will not be feasible to establish retirement or welfare plans due to the small number of employees at those locations. In those situations, we will establish alternative compensation or benefit programs to comply with our obligations to affected employees.

Treatment of Stock Options . The employee matters agreement will provide that each outstanding option to purchase shares of Marathon Oil common stock that is vested, whether held by a current or former officer or employee of Marathon Oil or a current or former officer or employee of MPC, generally will be adjusted so that the holders of the options will hold options to purchase both Marathon Oil and MPC common stock. This replacement will be implemented in a manner such that, following the spin-off, the exercise price of the adjusted Marathon Oil option will equal the trading price of a share of Marathon Oil stock after the spin-off multiplied by a fraction, the numerator of which is the original Marathon Oil option exercise price, and the denominator of which is the trading price of a share of Marathon Oil stock before the spin-off (which includes MPC). The exercise price of the substitute MPC option will equal the trading price of our common stock after the spin-off multiplied by a fraction, the numerator of which is the original Marathon Oil option exercise price, and the denominator of which is the trading price of a share of Marathon Oil common stock before the spin-off (which includes MPC). The number of shares of Marathon Oil common stock subject to the adjusted Marathon Oil option will equal the number of shares subject to the original Marathon Oil option multiplied by a fraction, the numerator of which is the aggregate spread of the original Marathon Oil option, calculated as of the distribution date, and the denominator of which is the sum of (a) the post-distribution trading price of Marathon Oil common stock minus the adjusted Marathon Oil exercise price and (b) the product of (1) the distribution ratio of 0.5 (based on one share of MPC common stock for every two shares of Marathon Oil common stock outstanding as of the record date) and (2) the trading price of our common stock after the spin-off minus the exercise price of the substitute MPC option. Both options, when combined, will generally preserve the intrinsic value (the difference between the exercise price of the option and the fair market value of the underlying stock) of the original option and the ratio of the exercise price to the fair market value of the stock subject to the option. The substitute MPC option will take into account all employment with Marathon Oil for purposes of determining when the option becomes exercisable and when it terminates. All other terms of the adjusted Marathon Oil option and the substitute MPC option will be substantially the same as the original option. Fractional shares will be disregarded, and the number of shares subject to such options will be rounded down to the next lower whole number of shares. As of December 31, 2010, there were outstanding options to purchase approximately 11.54 million shares of Marathon Oil common stock that would be replaced in this manner. A small number of employees in Marathon Oil’s international operations will have their vested stock options adjusted in the same manner as unvested options, which is described below.

The employee matters agreement will provide that each outstanding option to purchase shares of Marathon Oil common stock that has not vested and that is held by a current or former officer or employee of Marathon Oil who does not become an officer or employee of MPC immediately after the spin-off will be replaced with an adjusted Marathon Oil option. Each of those adjusted options will generally preserve the intrinsic value of the

 

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original option and the ratio of the exercise price to the fair market value of Marathon Oil common stock by adjusting the exercise price as described in the immediately preceding paragraph. The number of shares of Marathon Oil common stock subject to the adjusted Marathon Oil option will equal the number of shares subject to the original Marathon Oil option multiplied by a fraction, the numerator of which is the aggregate spread of the original Marathon Oil option, calculated as of the distribution date, and the denominator of which is the post-distribution trading price of Marathon Oil common stock minus the adjusted Marathon Oil exercise price. Fractional shares will be disregarded, and the number of shares subject to such options will be rounded down to the next lower whole number of shares. All other terms of the adjusted option will be substantially the same as the original option. As of December 31, 2010, there were outstanding options to purchase approximately 5.3 million shares of Marathon Oil common stock that would be adjusted in this manner. There are no unvested options to purchase shares of Marathon Oil common stock held by former officers or former employees.

The employee matters agreement will provide that each outstanding option to purchase shares of Marathon Oil common stock that has not vested and that is held by a person who is or will be an officer or employee of ours immediately after the spin-off will be replaced with a substitute option to purchase shares of our common stock. The substitute option will generally preserve the intrinsic value of the original option and the ratio of the exercise price to the fair market value of the stock by adjusting the exercise price as described above. The number of shares of MPC common stock subject to the substitute MPC option will equal the number of shares subject to the original Marathon Oil option multiplied by a fraction, the numerator of which is the aggregate spread of the original Marathon Oil option calculated as of the distribution date, and the denominator of which is the trading price of our common stock after the spin-off minus the exercise price of the substitute MPC option. Fractional shares will be disregarded, and the number of shares subject to such options will be rounded down to the next lower whole number of shares. The substitute option will take into account all employment with both Marathon Oil and us for purposes of determining when the option becomes exercisable and when it terminates. All other terms of the substitute option will be substantially the same as the original option. As of December 31, 2010, there were outstanding options to purchase approximately 2.75 million shares of Marathon Oil common stock that would be replaced in this manner.

Treatment of Stock Appreciation Rights. The employee matters agreement will provide that, following the distribution date, each outstanding vested Marathon Oil stock appreciation right will be replaced with both and adjusted Marathon Oil stock appreciation right and an MPC stock appreciation right. This replacement will be implemented in a manner such that immediately following the spin-off, the exercise price of the adjusted Marathon Oil stock appreciation right will equal the trading price of a share of Marathon Oil stock after the spin-off multiplied by a fraction, the numerator of which is the original Marathon Oil stock appreciation right exercise price, and the denominator of which is the trading price of a share of Marathon Oil stock before the spin-off (which includes MPC). The exercise price of the substitute MPC stock appreciation right will equal the trading price of our stock after the spin-off multiplied by a fraction, the numerator of which is the original Marathon Oil stock appreciation right exercise price, and the denominator of which is the trading price of a share of Marathon Oil stock before the spin-off (which includes MPC). The number of shares of Marathon Oil common stock subject to the adjusted Marathon Oil stock appreciation right will equal the number of shares subject to the original Marathon Oil stock appreciation right multiplied by a fraction, the numerator of which is the aggregate spread of the original Marathon Oil stock appreciation right, calculated as of the distribution date, and the denominator of which is the sum of (a) the post-distribution trading price of Marathon Oil common stock minus the adjusted Marathon Oil exercise price and (b) the product of (1) the distribution ratio of 0.5 and (2) the trading price of our common stock after the spin-off minus the exercise price of the substitute MPC stock appreciation right. Both stock appreciation rights, when combined, will generally preserve the aggregate intrinsic value (the difference between the grant price of the stock appreciation right and the fair market value of the underlying stock) of the original stock appreciation right. However, fractional shares subject to such stock appreciation rights will be disregarded. A small number of employees in Marathon Oil’s international operations will have their vested stock appreciation rights adjusted by adjustments to the number of shares of Marathon Oil common stock subject to those stock appreciation rights and the exercise price of those stock appreciation rights. There are no outstanding stock appreciation rights issued by Marathon Oil that have not yet vested.

 

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Treatment of Restricted Stock . The employee matters agreement will provide that (1) each Marathon Oil restricted stock award that is outstanding at the time of the spin-off and held by a person who is not and will not become an officer or employee of MPC immediately after the spin-off will be replaced with an adjusted Marathon Oil restricted stock award, which will generally preserve the value of the original award and (2) each Marathon Oil restricted stock award that is outstanding at the time of the spin-off and held by a person who is or will become an officer or employee of ours immediately after the spin-off will be replaced with a substitute MPC restricted stock awards, which will generally preserve the value of the original award, determined as of the distribution date. These restricted stock awards will be subject to the same vesting conditions as the original restricted stock awards. If any shares of MPC restricted stock are forfeited by the holder, the shares will revert to MPC. Similarly, if any shares of Marathon Oil restricted stock are forfeited by the holder, the shares will revert to Marathon Oil.

Treatment of Restricted Stock Units . The employee matters agreement will provide that each outstanding Marathon Oil restricted stock unit held by a person who is or will be an officer or employee or nonemployee director of ours immediately after the spin-off will be converted into substitute MPC restricted stock units, which will generally preserve the value of the original award. The employee matters agreement will provide that each outstanding Marathon Oil restricted stock unit held by a person who was or is an officer or employee or nonemployee director of Marathon Oil prior to the spin-off (and does not become an officer, employee or director of MPC immediately following the spin-off) will be adjusted at the time of the spin-off to generally preserve the value of the original restricted stock unit award, determined as of the distribution date. The substitute restricted stock units will take into account all employment or service as a director with both Marathon Oil and us for purposes of determining when the restricted stock units vest.

Treatment of Performance Units

Performance units having a three-year performance period have been granted to Marathon Oil officers. At the effective time of the spin-off, three groups of performance unit grants will be outstanding: the 2009 grant for the 2009-2011 performance period; the 2010 grant for the 2010-2012 performance period; and the 2011 grant for the 2011-2013 performance period. The value of these performance units will be calculated using the relative total stockholder return (“TSR”) of Marathon Oil as compared to its peer companies in the Amex Oil Index. However, pursuant to the employee matters agreement, the distribution date (rather than the end of the three-year performance period) will be treated as the end of the relevant performance period for purposes of this calculation. For the performance units granted in 2009, each holder of performance units will receive a payment based on the performance of Marathon Oil using the relative TSR measure, and this payment will not be prorated. For the performance units granted in 2010 and 2011, each holder of performance units will receive a prorated payment based on the performance of Marathon Oil using the relative TSR measure, and the portion of the performance period actually completed. For example, if the distribution date occurs on June 30, 2011, the 2010 grant of performance units will be valued based on Marathon Oil’s relative TSR through June 30, 2011, and then the value of the units will be multiplied by one-half to reflect the fact that one-half of the original performance period was completed as of the distribution date.

No Change in Control . The spin-off will not constitute a change in control for purposes of the Marathon Oil equity plans, and therefore no vesting of awards will occur as a result of the spin-off.

Entitlement to Tax Deductions . We generally will be entitled to claim all tax deductions for compensation arising after the spin-off from the exercise of substitute MPC options and adjusted Marathon Oil options held by current or former officers, employees or directors of MPC, the vesting of MPC restricted stock or the vesting of restricted stock units held by current or former employees of ours, and Marathon Oil will not claim any such deduction. Marathon Oil generally will be entitled to claim all tax deductions for compensation arising after the spin-off from the exercise of substitute MPC stock options and adjusted Marathon Oil options held by current or former officers, employees or directors of Marathon Oil, the vesting of Marathon Oil restricted stock or the vesting of Marathon Oil restricted stock units held by current Marathon Oil officers, employees or directors, and we will not claim any such deduction.

 

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Transition Services Agreement

On or before the distribution date, we and Marathon Oil will enter into a transition services agreement under which we and Marathon Oil will provide and/or make available various administrative services and assets to each other, for the one-year period beginning on the distribution date. We anticipate the services Marathon Oil will provide us will include:

 

   

administrative services;

 

   

accounting services;

 

   

procurement services;

 

   

health, environmental and safety services;

 

   

information technology services;

 

   

legal services;

 

   

natural gas administration services;

 

   

tax services; and

 

   

treasury services.

We anticipate the services we will provide to Marathon Oil will include:

 

   

accounting services;

 

   

health, environmental and safety services;

 

   

human resources services;

 

   

information technology services;

 

   

legal services;

 

   

marketing and transportation engineering services;

 

   

tax services; and

 

   

treasury services.

In consideration for such services, we and Marathon Oil will each pay fees to the other for the services provided, and those fees will generally be in amounts intended to allow the party providing services to recover all of its direct and indirect costs incurred in providing those services.

The personnel performing services under the transition services agreement will be employees and/or independent contractors of the party providing the service and will not be under the direction or control of the party to whom the service is being provided.

The transition services agreement will also contain customary mutual indemnification provisions.

Any extension or renewal of the transition services agreement beyond the first year following the spin-off will be subject to the mutual agreement of Marathon Oil and us.

Office Lease and Subleases

We and Marathon Oil expect to enter into agreements with respect to the lease or sublease of certain office space to each other following the spin-off. We expect that Marathon Oil will lease or sublease office space to us in Houston, Texas, Washington, D.C., Calgary, Alberta, and London, England. The rental amounts under those lease and sublease arrangements will be priced at levels reflecting either market rates or a pro rata share of square footage utilized.

 

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MANAGEMENT

Board of Directors

General

Under Delaware law, the business and affairs of MPC will be managed under the direction of its board of directors. The MPC certificate of incorporation and by-laws provide that the number of directors may be fixed by the board from time to time, provided that there are always at least three directors. As of the distribution date, the board of directors of MPC is expected to consist of the individuals listed below (ages as of June 30, 2011). The present principal occupation or employment and five-year employment history of each individual is set forth below under “—Biographical Information Relating to Directors.” Each of the individuals listed below is a citizen of the United States.

 

Name

   Age  

David A. Daberko

     65   

William L. Davis

     67   

Gary R. Heminger

     57   

Charles R. Lee

     71   

Seth E. Schofield

     71   

John W. Snow

     71   

Thomas J. Usher

     68   

The specific experience, qualifications, attributes or skills that led to the conclusion that the person should serve as a director are as follows.

David A. Daberko . Mr. Daberko has 39 years of work experience, including 12 years as Chairman and Chief Executive Officer of National City Corporation. In that position, Mr. Daberko dealt with many of the major issues that we deal with today, such as financial, strategic, technology, compensation, management development, acquisitions, capital allocation, government and stockholder relations. His service on other boards of companies listed on the NYSE has given him exposure to different industries and approaches to governance and other key issues. In addition, he has a valuable financial background from his education and work experiences. Mr. Daberko is expected to be named as one of our financial experts serving on the Audit Committee.

William L. Davis . As a former chairman and chief executive officer, Mr. Davis has experience running a publicly traded company. He has dealt with many of the major issues that we deal with today, such as financial, strategic, technology, compensation, management development, acquisitions, capital allocation, government and stockholder relations. Also, his previous and current board positions on three other publicly traded company boards have given him exposure to different industries and approaches to governance and other key issues.

Gary R. Heminger . As our President and Chief Executive Officer, Mr. Heminger establishes the strategic direction of our company under the guidance of our Board. He has over 35 years of experience working for us in a variety of executive and management positions and has extensive knowledge of every aspect of our business. His knowledge and experience of handling the day-to-day issues affecting our business provide the Board with invaluable information necessary to direct the business and affairs of our company.

Charles R. Lee . As a result of his positions as chairman and chief executive officer of Verizon Communications and various other executive, financial and management positions, Mr. Lee has valuable experience in managing many of the major issues that we deal with today, such as financial, strategic, technology, compensation, management development, acquisitions, capital allocation, government and stockholder relations. His service on the board of four other publicly traded companies has provided him exposure to different industries and approaches to governance and other key issues. Mr. Lee also has extensive financial and accounting expertise and is expected to be named as one of the Audit Committee financial experts.

 

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Seth E. Schofield . As a former chairman and chief executive officer, Mr. Schofield has experience running a publicly traded company. He has dealt with many of the major issues that we deal with today, such as financial, strategic, technology, compensation, management development, acquisitions, capital allocation, government and stockholder relations. Also, his previous and current board positions on three other publicly traded company boards have given him exposure to different industries and approaches to governance and other key issues.

John W. Snow . Through his position as Chairman of one of the world’s leading private investment firms, former position as Secretary of the Treasury, former chairman and CEO of a publicly traded company, and other appointments and positions, Mr. Snow has managed many of the major issues that we deal with today, such as financial, strategic, technology, regulatory, compensation, personnel development, capital allocation and public relations. Also, his experience on other publicly traded company boards has given him exposure to different industries and approaches to governance and other key issues.

Thomas J. Usher . It is expected that Mr. Usher will serve as our Chairman of the Board. He was the former chairman of Marathon Oil and former chairman and CEO of USX Corporation. Through these and other executive and management positions, he has gained extensive knowledge of the refining, marketing and transportation business and has managed many of the major issues that we deal with today, such as financial, strategic, technology, regulatory, compensation, personnel development, capital allocation and public relations. His experience on other publicly traded company boards has also given him exposure to different industries and approaches to governance and other key issues.

Biographical Information Relating to Directors

The present principal occupation or employment and five-year employment history of each individual is set forth below.

Mr. Daberko graduated from Denison University with a bachelor’s degree and from Case Western Reserve University with a master’s degree in business administration. He joined National City Bank in 1968 as a management trainee and held a number of management positions within the company. In 1985, he led the assimilation of the former BancOhio National Bank into National City Bank, Columbus. In 1987, Mr. Daberko was elected Deputy Chairman of the corporation and President of National City Bank in Cleveland. He served as President and Chief Operating Officer from 1993 until 1995 when he was named Chairman and Chief Executive Officer. He retired as Chief Executive Officer in June 2007 and as Chairman in December 2007. Mr. Daberko serves on the Board of Directors of Chesapeake Midstream Partners, L.P. and RPM International, Inc. He is a trustee of Case Western Reserve University, University Hospitals Health System and Hawken School. Mr. Daberko also previously served, within the last five years, as a director of National City Corporation and OMNOVA Solutions, Inc. Mr. Daberko is one of the named financial experts serving on Marathon Oil’s Audit and Finance Committee. Mr. Daberko has been a director of Marathon Oil since 2002.

Mr. Davis graduated from Princeton University in 1965 with a bachelor’s degree. From 1977 through 1997 he held a variety of positions with Emerson Electric Company, including the position of President of two of its subsidiaries, Appleton Electric Company and Skil Corporation, and Senior Executive Vice President for the Emerson Tool Group, the Industrial Motors and Drives Group and the Process Control Group. Mr. Davis joined R.R. Donnelley & Sons Company in 1997 as the Chairman and Chief Executive Officer. In 2001, he accepted the responsibility as President of the company. Mr. Davis retired as Chairman, President and Chief Executive Officer of R.R. Donnelley & Sons Company in February 2004. Mr. Davis serves on the Board of Directors of Air Products and Chemicals, Inc. He also serves on the Board of Directors of Northshore University Health System, previously serving as Chairman of the Board. Mr. Davis is a former Director of Mallinckrodt. Mr. Davis has been a director of Marathon Oil since 2002.

Mr. Heminger graduated from Tiffin University in 1976 with a bachelor’s degree in accounting while already employed by Marathon Oil Company in Findlay, Ohio. He earned a master’s degree in business administration from the University of Dayton, Ohio, in 1982, and attended the Wharton School Advanced

 

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Management Program in 1999. Mr. Heminger is President of Marathon Petroleum Company LP (which, together with its predecessor entities, including Marathon Ashland Petroleum LLC, we refer to as “Marathon Petroleum Company LP”), a wholly owned subsidiary of Marathon Oil, and President of MPC. He assumed responsibility as President of Marathon Petroleum Company LP in September 2001 and as President of MPC in April 2010. He also serves as Executive Vice President—Downstream of Marathon Oil and as a member of Marathon Oil’s Executive Committee. He joined Marathon Oil in 1975 and was appointed to his current position with Marathon Oil in July 2005. Mr. Heminger’s more than 35 years with Marathon Oil include experience in a variety of groups and functions, including service in various financial, marketing, commercial and administrative roles. Mr. Heminger is chairman of the Board of Trustees of Tiffin University. He is past chairman of both the American Petroleum Institute Downstream Committee and Louisiana Offshore Oil Port, and a member of the Oxford Institute for Energy Studies. He also serves on the Board of Directors of Fifth Third Bancorp, the Board of Directors and Executive Committee for the National Petrochemical & Refiners Association as well as the Board of the U.S.-Saudi Arabian Business Council.

Mr. Lee received his bachelor’s degree in metallurgical engineering from Cornell University and a master’s degree in business administration with distinction from the Harvard Graduate School of Business Administration. He served in various financial and management positions before becoming Senior Vice President of Finance for Penn Central Corp. and then Columbia Pictures Industries Inc. In 1983, Mr. Lee joined GTE Corporation (which merged with Bell Atlantic Corporation to form Verizon Communications in 2000) as Senior Vice President of Finance and in 1986 was named Senior Vice President of Finance and Planning. He was elected President, Chief Operating Officer and a Director in December 1988 and was elected Chairman of the Board and Chief Executive Officer of GTE in 1992. Mr. Lee served as Chairman of the Board and Co-CEO of Verizon Communications from June 30, 2000, through March 31, 2002, and served as non-executive Chairman of the Board from April 2002 to December 2003. Mr. Lee serves on the Boards of Directors of United States Steel Corporation, United Technologies Corporation and DIRECTV. Mr. Lee is a member of the Board of Overseers of Weill Cornell Medical College and is a member of The Business Council. Mr. Lee is also a Trustee Emeritus and Presidential Councilor of Cornell University. Mr. Lee also has extensive financial and accounting expertise and is one of Marathon Oil’s Audit and Finance Committee financial experts. Mr. Lee has been a director of Marathon Oil since 1991.

Mr. Schofield graduated from the Harvard Business School Program for Management Development in 1975. He served in various corporate staff positions after joining USAir in 1957 and became Executive Vice President of Operations in 1981. Mr. Schofield served as President and Chief Operating Officer from 1990 until 1991. He was elected President and Chief Executive Officer in 1991 and became Chairman of the boards of USAir Group and USAir, Inc. in 1992. He retired in January 1996. Mr. Schofield is the presiding director of United States Steel Corporation and lead director of Calgon Carbon Corp. Mr. Schofield has been a director of Marathon Oil since 1994.

Mr. Snow graduated from the University of Toledo in 1962 with a bachelor’s degree. He also holds a master’s degree from Johns Hopkins University and a doctorate in economics from the University of Virginia. Mr. Snow graduated with a law degree from George Washington University in 1967. He joined Cerberus Capital Management, L.P. as Chairman in October 2006. Mr. Snow was sworn into office as U.S. Secretary of the Treasury in February 2003, where he served until leaving office in June 2006. Prior to becoming Secretary of the Treasury, he was Chairman and Chief Executive Officer of CSX Corporation. He also held several high-ranking positions in the Department of Transportation during the Ford Administration. Mr. Snow is a Director of Verizon Communications Inc. He is a former co-chairman of the Conference Board’s Blue-Ribbon Commission on Public Trust and Private Enterprise. He also served as co-chairman of the National Commission on Financial Institution Reform, Recovery and Enforcement. Prior to serving as Secretary of the Treasury, Mr. Snow served on various corporate and nonprofit boards, including the American Enterprise Institute and Johns Hopkins University. He previously served as a member of USX Corporation’s Board of Directors from March 1995 through December 2001. Mr. Snow has been a director of Marathon Oil since 2006.

 

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Mr. Usher graduated from the University of Pittsburgh with a bachelor’s of science degree in industrial engineering, a master’s of science degree in operations research and a doctorate in systems engineering. He joined United States Steel Corporation (later renamed USX Corporation) in 1965 and held various positions in industrial engineering. From 1975 through 1979, he held a number of management positions at U.S. Steel’s South and Gary Works. Mr. Usher was elected Executive Vice President of Heavy Products in 1986, President of U.S. Steel Group and Director of USX in 1991, President and Chief Operating Officer of USX in 1994 and Chairman of the Board and Chief Executive Officer effective July 1, 1995. He retired from United States Steel Corporation as Chief Executive Officer in September 2004 and as non-executive Chairman of the Board on February 1, 2006. Mr. Usher serves on the Boards of Directors of H. J. Heinz Co., The PNC Financial Services Group, Inc. and PPG Industries, Inc. He previously served, within the past five years, as Chairman of the Board for United States Steel Corporation. Mr. Usher is a member of the Board of Trustees of the University of Pittsburgh, a Board of Directors member of the Extra Mile Education Foundation, and a member of The Business Council. Mr. Usher is Chairman of the Board of Marathon Oil and former chairman and CEO of USX Corporation. Mr. Usher has been a director of Marathon Oil since 1991.

We expect that each of Messrs. Daberko, Davis, Lee, Schofield, Snow and Usher will resign from the Marathon Oil board of directors, and Mr. Heminger will resign from his positions with Marathon Oil, upon completion of the spin-off.

Executive Officers

The individuals listed below (with their ages as of June 30, 2011) are expected to be executive officers of MPC as of the distribution date. The business address of each of the individuals listed below is 539 South Main Street, Findlay, Ohio 45840-3229. The present principal occupation or employment and five-year employment history of each individual follows the list below (except that the five-year employment history for Mr. Heminger is presented above, following the listing of expected members of the board of directors of MPC). We expect that these individuals will resign from their respective positions with Marathon Oil upon completion of the spin-off. Each of the individuals listed below is a citizen of the United States.

 

Name

   Age   

Position with MPC

Gary R. Heminger

   57    President and Chief Executive Officer

Pamela K.M. Beall

   54    Vice President, Investor Relations and Government & Public Affairs

Richard D. Bedell

   56    Senior Vice President, Refining

Thomas M. Kelley

   52    Senior Vice President, Marketing

Anthony R. Kenney

   57    President, Speedway SuperAmerica LLC

Rodney P. Nichols

   58    Vice President, Human Resources and Administrative Services

C. Michael Palmer

   57    Senior Vice President, Supply, Distribution and Planning

Garry L. Peiffer

   59    Senior Vice President and Chief Financial Officer

George P. Shaffner

   52    Senior Vice President, Transportation and Logistics

J. Michael Wilder

   58    Vice President, General Counsel and Secretary

Ms. Beall graduated from The University of Findlay with a bachelor’s degree in accounting in 1978. In 1984, she received her master’s degree in business administration from Bowling Green State University. Ms. Beall was licensed as a Certified Public Accountant in Ohio in 1984. She began her career with Marathon Oil in 1978, and was appointed to her current position of Vice President—Products Supply and Optimization of Marathon Petroleum Company LP in June 2010. Previously, she served as Organizational Vice President, Business Development—Downstream, and Vice President of Global Procurement between 2006 and 2009 and, prior to that, in various other roles of increasing responsibility in the business development and corporate affairs areas. Ms. Beall served as the 2005/06 chair for the American Petroleum Institute Envisioned Future Initiative steering committee and the 2007 vice-chair for the Greater Findlay Inc., a partnership for growth. She is a

 

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member of The Ohio Society of CPAs and The University of Findlay board of trustees. She also served on the board of directors of Boyle Engineering Corporation from August 2006 to March 2008.

Mr. Bedell earned a bachelor’s of science degree in chemical engineering from Lehigh University in 1977 and a master’s of science degree in petroleum engineering from the University of Houston in 1984. He also completed the Executive Program at Stanford University in 2004. Mr. Bedell joined Marathon Oil in 1979, and was appointed to his current position as Senior Vice President, Refining of Marathon Petroleum Company LP in June 2010. Since joining Marathon Oil, he has held numerous refining-related management positions at several of our refineries, and at several of our refining divisions. Mr. Bedell currently serves on the board of directors of the National Petrochemical & Refiners Association and is a member of the American Petroleum Institute’s Refining Subcommittee and the American Chemistry Council’s Board Committee on Responsible Care ® .

Mr. Kelley graduated from Indiana State University in 1981 with a bachelor’s of science degree in marketing. He attended the Wharton School Advanced Management Program in 2002 and the Institute for Energy Studies at Oxford University in 2008. Mr. Kelley joined Marathon Oil in June 1981, and was appointed to his current position as Senior Vice President, Marketing of Marathon Petroleum Company LP in January 2010. Previously, he served as a Director, Crude Supply and Logistics from January 2008, and as a Brand Marketing Manager for eight years prior to that. Since joining Marathon Oil, Mr. Kelley has held various positions of increasing responsibility in the areas of marketing, supply and distribution. He is a member of the American Petroleum Institute, currently serving on its General Committee on Marketing.

Mr. Kenney graduated from Miami University in 1976 with a bachelor’s of science degree in accounting. In 2000, he attended the Executive Program at the University of Michigan Business School. Mr. Kenney has more than 34 years of experience with Marathon Oil, including service as President of Speedway SuperAmerica LLC since August 2005. His previous job responsibilities included service as Vice President, Business Development for Marathon Petroleum Company LP from 2001 to August 2005. He serves on the Board of Directors of the Ohio Chamber of Commerce, the Greater Springfield Chamber of Commerce and The Association for Convenience & Petroleum Retailing.

Mr. Nichols graduated with a bachelor’s degree in advertising and a master’s degree in labor and industrial relations from Michigan State University. He attended the Advanced Human Resource Executive Program at the University of Michigan Business School in 2002. Mr. Nichols began his employment with Marathon Oil in 1977, and was appointed to his current position as Vice President, Human Resources and Administrative Services of Marathon Petroleum Company LP in 1998. Previously, Mr. Nichols held various positions of increasing responsibility in the areas of employee relations and human resources. Mr. Nichols serves on the Blanchard Valley Health Association Board of Trustees, Audit and Human Resources Boards, and he is the Chairman of the Board of Trustees for the Blanchard Valley Medical Practice LLC, and a member of Michigan State University’s Advisory Board.

Mr. Palmer graduated from Indiana University’s Kelley School of Business in 1976 with a bachelor’s of science degree in finance. He attended the Institute for Energy Studies at Oxford University in 2010. Mr. Palmer began his career with Marathon Oil in 1976, and was appointed to his current position as Vice President, Crude Supply and Logistics of Marathon Petroleum Company LP in June 2010. Since joining Marathon Oil, he has been named to a variety of management positions of increasing responsibility. He served as Crude Supply and Logistics director beginning in February 2010, as Senior Vice President, Oil Sands Operations and Commercial Activities for Marathon Oil Canada Corporation beginning in 2007, and as manager of Business Development for Marathon Petroleum Company LLC beginning in 1999.

Mr. Peiffer graduated from Bowling Green State University with a bachelor’s degree in accounting in 1974. Mr. Peiffer began his career with Marathon Oil Company in 1974, and was appointed to his current position as Senior Vice President of Finance and Commercial Services of Marathon Petroleum Company LP in 1998. Previously, he served in numerous other accounting, finance and logistics positions. In 1987, Mr. Peiffer was

 

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appointed to the President’s Commission on Executive Exchange program and served for a year in the Pentagon as special assistant to the Assistant Secretary of Defense for Production and Logistics. Mr. Peiffer is a member of the Blanchard Valley Health System Board of Trustees and Audit Committee; the Blanchard Valley Port Authority Board; the Fifth Third Bank (Northwestern Ohio) Board of Directors; and the Findlay-Hancock County Community Foundation Board of Trustees and Finance & Investment Committee.

Mr. Shaffner graduated from Rose-Hulman Institute of Technology with a bachelor’s of science degree in mechanical engineering in 1981. He also completed the Wharton School Advanced Management Program at the University of Pennsylvania in 2007. Mr. Shaffner joined Marathon Oil in 1981, and was appointed to his current position as Senior Vice President, Transportation and Logistics of Marathon Petroleum Company LP in June 2010. Previously, Mr. Shaffner held a number of key engineering and managerial positions in Marathon Petroleum Company LP’s pipeline, marketing and refining operations, including serving as division manager of the St. Paul Park, Minnesota refinery beginning in 2003 and as Detroit Refining Division Manager beginning in October 2006. Mr. Shaffner has served on National Petroleum & Refiners Association and American Petroleum Institute committees for refining maintenance and risk-based inspection practices. He currently serves as Chairman of the Board of the Louisiana Offshore Oil Port (LOOP).

Mr. Wilder graduated with a bachelor’s degree from the University of Kentucky in 1975 and Juris Doctorate from the University of Kentucky College of Law in 1978. He also attended the Executive Development Program at Indiana University in 1990 and the Program for Management Development at Harvard University in 1995. Mr. Wilder was appointed as General Counsel and Secretary for Marathon Petroleum Company LP in 1998. He assumed his current position as Associate General Counsel of Marathon Oil in September 2009. Prior to joining Marathon Petroleum Company LP, Mr. Wilder worked for Ashland and served in various roles of increasing responsibility in its law department and for its SuperAmerica convenience store group. Mr. Wilder has also served as secretary-treasurer and president of The Findlay/Hancock County Bar Association, and as chairman of the Owens Community College Foundation Board of Directors and Kentucky Council on Child Abuse Board of Directors.

Board of Directors

As of the distribution date, we expect that our board of directors will consist of at least seven directors. The New York Stock Exchange requires that a majority of our board of directors qualify as “independent” according to the rules and regulations of the SEC and the New York Stock Exchange. We intend to comply with those requirements.

Committees of Our Board of Directors

Upon completion of the spin-off, the committees of our board of directors are expected to consist of an Audit Committee, a Corporate Governance and Nominating Committee and a Compensation Committee. Each of these committees will be required to comply with the requirements of the SEC and the New York Stock Exchange. Our board of directors will adopt a written charter for each of these committees, which will be posted to our website prior to the distribution date.

Audit Committee

Our Audit Committee will be responsible for, among other things, appointing, replacing, compensating and overseeing the work of our independent auditor, approving in advance all audit, audit-related, tax and permissible non-audit services to be performed by our independent auditor, separately meeting with our independent auditor, the internal auditors and management with respect to the status and results of their activities, reviewing approving and discussing with management and our independent auditor the annual and quarterly financial statements, reports of internal control over financial reporting, our annual reports to stockholders and our annual reports on Form 10-K, reviewing earnings press releases, and discussing with management the guidelines and

 

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policies necessary to govern the process by which risk assessment and management is undertaken by us. As of the distribution date, the Audit Committee will consist of David A. Daberko, William L. Davis and Charles R. Lee, with Mr. Daberko serving as chair. We expect that each of Messrs. Daberko and Lee will qualify as an audit committee financial expert.

Corporate Governance and Nominating Committee

Our Corporate Governance and Nominating Committee will be responsible for, among other things, reviewing and making recommendations to our board of directors concerning the appropriate size and composition of the board, including candidates for election or re-election as directors, the criteria to be used for the selection of candidates for election as directors, the composition and functions of the board committees, and all matters relating to the effective functioning of the board, considering and recruiting candidates to fill positions on the board, considering nominees recommended by stockholders for election as directors, assessing and recommending overall corporate governance practices, and reviewing and approving codes of conduct applicable to directors, officers and employees. As of the distribution date, the Corporate Governance and Nominating Committee will consist of William L. Davis, Seth E. Schofield, Charles R. Lee and John W. Snow, with Mr. Davis serving as chair.

Compensation Committee

Our Compensation Committee will be responsible for, among other things, making recommendations to the board and to our board of directors and to the boards of subsidiaries on all matters of policy and procedure relating to executive compensation, reviewing approving corporate goals and objectives relevant to our chief executive officer’s compensation, and determining and approving our chief executive officer’s compensation level based on the board’s performance evaluation of our chief executive officer, determining and approving the compensation of our other executive officers, reviewing the succession plan relating to positions held by our other executive officers, and recommending to the board and administering our incentive compensation plans and equity-based plans. As of the distribution date, the Compensation Committee will consist of Seth E. Schofield, David A. Daberko and John W. Snow, with Mr. Schofield serving as chair.

Director Compensation

Our nonemployee directors will receive compensation for their service on the board. Following the spin-off, we expect our director compensation programs will be structured similarly to those currently in place at Marathon Oil. However, the compensation amounts have not been established.

In 2010, Marathon Oil paid its nonemployee directors as follows:

 

Annual Cash Retainer   $150,000
Annual Common Stock Unit Award   $150,000
Committee Chair Retainer   $15,000 Audit and Finance Committee
  $12,000 Compensation Committee
  $10,000 All other committees
Chairman of the Board Annual Cash Retainer   $350,000
Chairman of the Board Annual Common Stock Unit Award   $100,000

Directors do not receive meeting fees for attendance at board of directors or committee meetings.

For their service on the Marathon Oil Board of Directors in 2010, nonemployee directors, other than the chairman, received an annual common stock unit award valued at $150,000. The chairman received an annual common stock unit award valued at $100,000. These awards are credited to an unfunded account based on the

 

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closing stock price on the grant date. When dividends are paid on Marathon Oil’s common stock, Marathon Oil’s nonemployee directors receive dividend equivalents on those awards in the form of common stock units. The awards are payable in shares of common stock upon the director’s departure from the board of directors.

Our nonemployee directors will also be reimbursed for any expenses associated with attending board or committee meetings.

Executive Compensation

Our executive compensation program is described in “Executive Compensation—Compensation Discussion and Analysis.”

Code of Business Conduct

Prior to the distribution date, we will adopt a code of business conduct that is designed to reinforce our commitment to high ethical standards and to promote:

 

   

accountability and responsibility for making good decisions and for the outcomes those decisions produce;

 

   

responsibility to one another by treating all employees with dignity and respect;

 

   

responsibility to the public and our stockholders by taking responsibility for our actions;

 

   

responsibility to our business partners by treating our business partners as equals in the quest for high business conduct standards; and

 

   

responsibility to governments and the law by complying with applicable legal and regulatory standards.

 

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EXECUTIVE COMPENSATION

Compensation Discussion and Analysis

Executive Summary

The five persons who we expect will be our named executive officers as of the distribution date are identified in the Summary Compensation Table below. For purposes of this Compensation Discussion and Analysis, we refer to them collectively as our named executive officers. The information provided for the years 2010, 2009 and 2008 reflects compensation earned at Marathon Oil or its subsidiaries and the design and objectives of the executive compensation programs in place prior to the spin-off.

This Compensation Discussion and Analysis has three main parts:

 

   

First, it outlines the executive compensation programs at Marathon Oil for 2010 as disclosed in the following tables.

 

   

Second, it describes treatment of outstanding equity awards and other compensation programs as a result of the spin-off.

 

   

Third, it describes our anticipated executive compensation programs following the spin-off.

All executive compensation decisions for our named executive officers prior to the spin-off will be made by the Compensation Committee of Marathon Oil Corporation (the “Marathon Oil Compensation Committee”), which is composed of seven independent directors. Executive compensation decisions following the spin-off will be made by the Compensation Committee of MPC (our “Compensation Committee”).

We anticipate that compensation for our named executive officers immediately following the distribution date will be substantially similar to the compensation they currently receive as Marathon Oil officers.

Executive Compensation Programs for 2010 at Marathon Oil

At Marathon Oil, executive compensation programs are based on a pay-for-performance philosophy and are designed to align the interests of executives with those of Marathon Oil’s stockholders and reinforce the business objectives and corporate values that drive Marathon Oil’s success. The discussion below provides more information about the compensation philosophy for our named executive officers applicable to their service as officers of Marathon Oil during 2010, including a detailed description of each component of pay. It also describes the decisions the Marathon Oil Compensation Committee made for 2010.

Executive compensation at Marathon Oil consists primarily of the following components, each of which is generally targeted at the peer group 50 th percentile:

 

   

Base salary.

 

   

Annual cash bonus—Intended to reward officers for calendar year performance. Actual bonus payouts may vary from the targeted amount based upon company, organizational, and individual performance.

 

   

Long-term incentives—Intended to reward officers based on Marathon Oil’s long-term stock price performance. Long-term incentives consist of performance units, stock options and restricted stock.

In addition, Marathon Oil officers receive pension benefits, and in the event of a change-in-control, they could receive severance benefits.

 

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Our named executive officers for 2010 are listed below.

 

Name

 

2010 Marathon Oil Job Title

 

2011 MPC Job Title

Gary R. Heminger

  Executive Vice President, Downstream   President and Chief Executive Officer

Garry L. Peiffer

  Senior Vice President, Finance and Commercial Services   Senior Vice President and Chief Financial Officer

Richard D. Bedell

  Senior Vice President, Refining   Senior Vice President, Refining

Anthony R. Kenney

  President, Speedway LLC   President, Speedway LLC

J. Michael Wilder

  Vice President, Deputy General Counsel   Vice President, General Counsel and Secretary

Compensation Objectives

The Marathon Oil executive compensation program for 2010 was designed to achieve the following objectives:

 

   

Attract talented and experienced executive leaders by providing competitive incentives for them to accept the responsibilities and risks of their positions;

 

   

Motivate executive officers by rewarding them for individual and collective contributions to Marathon Oil’s success, including increasing stockholder value; and

 

   

Retain knowledgeable and experienced executive officers who directly impact Marathon Oil’s current and future success.

Compensation Program Design

To assist in accomplishing the objectives of our compensation program, the Marathon Oil Compensation Committee engaged an executive compensation consultant. During 2010, the Committee used the services of two consulting firms, Towers Watson & Co. and Meridian Compensation Partners LLC. Towers Watson had served as the Committee’s compensation consultant since 2005. Beginning in October 2010, the Marathon Oil Compensation Committee engaged Meridian.

The terms of the relationship with each firm are set forth in an agreement between the Marathon Oil Compensation Committee and the compensation consulting firm. Neither Towers Watson nor Meridian provided any non-compensation related services to Marathon Oil or MPC, nor did they provide any services to our named executive officers individually in 2010.

In August 2010, the Marathon Oil Compensation Committee asked Towers Watson to prepare a comprehensive study of executive officer compensation and directed Towers Watson regarding the items to be included. Towers Watson collected comparative market data on executive officer compensation. Meridian then assessed the competitiveness of Marathon Oil’s executive officer compensation programs and presented its analysis to the committee in October 2010.

The Marathon Oil Compensation Committee used this analysis as one tool in evaluating compensation practices and competitive pay levels for executive officers of MPC and making appropriate compensation and program design decisions. Topics covered in the 2010 analysis included:

 

   

Target and actual total direct compensation (base salary plus annual incentive plus long-term incentives);

 

   

Annual incentive performance measures commonly used;

 

   

Appropriate mix and level of long-term incentives;

 

   

Shares available and share usage under our long-term incentive plan compared to peers;

 

   

Severance benefits; and

 

   

Emerging pay practices, including common stockholder proposals and corporate governance initiatives.

 

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For purposes of this study, peer companies were those with whom Marathon Oil most often competes for talent and were selected by the Marathon Oil Compensation Committee based on a comparison of pertinent financial measures. These financial measures included revenue, market capitalization and total shareholder return. MPC officer positions were compared to comparable positions at select peer companies. The peer companies used in the competitive analysis were:

 

Upstream* Peers

  

Integrated Peers

  

Downstream* Peers

Anadarko Petroleum Corporation

   Chevron Corporation    Sunoco Inc.

Apache Corporation

   ConocoPhillips    Tesoro Corporation

Devon Energy Corporation

   Hess Corporation    Valero Energy Corporation

Occidental Petroleum Corporation

     

 

* Marathon Oil’s Exploration and Production, Integrated Gas, and Oil Sands Mining segments are collectively referred to as “upstream.” Marathon Oil’s Refining, Marketing and Transportation segment is referred to as “downstream.”

Depending on the business segment for which a named executive officer was responsible, the list of companies used for comparison varied. In comparing compensation for Mr. Heminger, additional data was included from BP p.l.c. and Shell Oil Company. Data was available for all five individuals who we expect to be MPC named executive officers. The peer companies listed above remained the same as in prior years. In this Compensation Discussion and Analysis, references to “market” are references to compensation paid or provided by these peer companies.

All MPC officers are covered by the same compensation plans, policies, and practices.

Stock Ownership Requirements and Anti-Hedging Policy

All of Marathon Oil’s officers who are “executive officers” for purposes of Section 16 of the Exchange Act are subject to stock ownership requirements, which reinforce the alignment of interests between officers and stockholders. The stock ownership requirements are as follows:

 

   

Chief Executive Officer—five times base salary;

 

   

Executive Vice Presidents—four times base salary;

 

   

Senior Vice Presidents—three times base salary; and

 

   

Vice Presidents—two times base salary.

Executive officers have five years from their appointment date to achieve the designated stock ownership level. The Marathon Oil Compensation Committee reviews each executive officer’s progress towards the requirements on at least an annual basis. Executive officers who have not reached the required level of stock ownership are expected to hold the shares they receive upon exercise of stock options (after taxes) so that they meet their requirements in a timely manner.

In order to ensure that officers bear the full risks of stock ownership, Marathon Oil corporate policies prohibit officers from engaging in hedging transactions related to Marathon Oil stock. Marathon Oil officers are also prohibited from pledging or creating a security interest in any Marathon Oil shares they hold, including shares in excess of the applicable ownership requirement.

2010 Base Salary

Three of our five named executive officers received base salary increases in 2010. In making these decisions at the February 2010 meeting, the Marathon Oil Compensation Committee considered each named executive officer’s current salary as compared to the available market 50th percentile as provided by the Committee’s

 

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external consultant in October 2009, along with individual performance. While the Marathon Oil Compensation Committee did not utilize internal pay ratios, it did evaluate the relative value of each position to Marathon Oil and ensure that compensation levels were internally equitable and consistent with the value assigned to each position.

2010 Base Salary Increases

Effective April 1, 2010, the Marathon Oil Compensation Committee increased base salaries for our named executive officers as follows: Mr. Heminger, $900,000 to $925,000 and Mr. Kenney, $375,000 to $400,000. Mr. Bedell received a modest base salary increase in April, and then another increase from $295,000 to $400,000 upon his promotion in June to his current officer position. Neither Mr. Peiffer nor Mr. Wilder received base salary increases in 2010. The Marathon Oil Compensation Committee did not use a formula to calculate base salary increases for named executive officers. Additionally, the Marathon Oil Compensation Committee’s philosophy is to increase salaries of recently promoted officers over a multi-year period.

2010 Annual Cash Bonus

The Marathon Oil officers’ annual cash bonus program for 2010 closely linked annual bonus payments made to our named executive officers to both company performance and each individual officer’s performance for 2010. The Marathon Oil Compensation Committee determined the annual cash bonus for each named executive officer based primarily on the following criteria:

 

   

Company performance, including achievement of the specific performance metrics established by the Committee during the first quarter of 2010;

 

   

Individual performance, including demonstrated leadership and ethics; and

 

   

External competitiveness, with bonus targets set at or near the 50th percentile for similar positions at peer companies.

Within the structure of the bonus program, the Marathon Oil Compensation Committee ultimately used its discretion to determine bonus payments for our named executive officers. Bonus payments reflected Marathon Oil’s solid performance in 2010.

The discussion below provides more information about the officers’ annual cash bonus program for 2010, as well as factors that influenced the bonus payments approved by the Marathon Oil Compensation Committee.

2010 Bonus Target Opportunities

The Marathon Oil Compensation Committee used competitive market data to establish a bonus target for each level of officer that was expressed as a percentage of year-end base salary. Bonus targets were generally set at the market 50th percentile for comparable positions. For 2010, the bonus targets for our named executive officers were as follows:

 

Name

  

2010 Marathon Oil

Officer Level

   2010 Bonus Target
(as  % of Base Salary)
 

Gary R. Heminger

               Executive Vice President      95

Garry L. Peiffer

               Senior Vice President      70

Richard D. Bedell

               Senior Vice President      70

Anthony R. Kenney

               Senior Vice President      70

J. Michael Wilder

               Vice President      60

Although targets were set at competitive levels, actual bonus payments varied from the target amount depending upon company, organizational and individual performance for the year.

 

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Performance Metrics for 2010 Annual Cash Bonus Program

During the first quarter of 2010, the Marathon Oil Compensation Committee established the performance metrics outlined in the table below:

 

Performance Metric

  

Description

   Type of
Measure
  

Business
Segment

E&P Net Production    A significant indicator of the success of Marathon Oil’s Exploration and Production (“E&P”) segment    Operational
(absolute)
   Upstream
Year-on-Year Competitive Comparison—E&P and Integrated Gas Combined Segment Income Adjusted for Special Items    Measures the percent increase or decrease in adjusted segment income in 2010 vs. 2009, as compared to a group of nine other integrated and pure upstream companies    Financial
(relative)
   Upstream
Operating Income per Barrel of Crude Oil Throughput—U.S. Downstream Segment Income Adjusted for Special Items    Measures operating income per barrel of crude oil throughput, as compared to a group of seven other integrated and pure downstream companies    Financial
(relative)
   Downstream
Downstream Mechanical Availability    A significant indicator of the success of Marathon Oil’s downstream business    Operational
(absolute)
   Downstream
Corporate Safety—OSHA Recordable Incident Rate    A core value of Marathon Oil and an important measure of its success    Operational
(absolute)
   Upstream and Downstream

The Marathon Oil Compensation Committee determined the target level of performance for each metric by evaluating factors such as performance achieved in the immediately preceding year, anticipated challenges for the year, business plan and company strategy.

The table below shows both the targets set by the Marathon Oil Compensation Committee and Marathon Oil’s performance during 2010. The metrics are described more fully in the footnotes to the table.

 

Performance Metric

  

Target Performance

  

Performance Achieved

E&P Net Production(a)    425,000 barrels of oil equivalent per day   

416,000 barrels of oil equivalent per day

Year-on-Year Competitive Comparison—E&P and Integrated Gas Combined Segment Income Adjusted for Special Items(b)    3 rd - 5 th position out of 10 companies    5 th position
Operating Income per Barrel of Crude Oil Throughput—U.S. Downstream Segment Income Adjusted for Special Items(c)    3 rd position out of 8 companies    3 rd position
Downstream Mechanical Availability(d)    93.80%    94.58%
Corporate Safety—OSHA Recordable Incident Rate(e)    .48    .60

 

(a)

E&P Net Production is calculated as production available for sale and then adjusted for pricing effects as a result of production sharing contracts, catastrophic events, and acquisitions and divestitures. This number differs from the reported level of average E&P production available for sale of 391,000 barrels of oil

 

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equivalent per day, which is from continuing operations and does not include these adjustments. Production available for sale during the year can differ from production sold primarily as a result of the timing of international crude oil liftings and natural gas sales.

(b) Total of 10 comparator companies, including Marathon Oil. E&P segment income was adjusted to include Integrated Gas segment income. Comparator company income was also adjusted for special items or other like items. The comparator companies for the E&P and Integrated Gas combined segment income metric were Anadarko, BP, Chevron, ConocoPhillips, ExxonMobil, Hess, Murphy, Occidental, and Royal Dutch Shell. This metric is not determined using accounting principles generally accepted in the United States. (BP, ExxonMobil, Murphy and Royal Dutch Shell are not included in the peer companies used in the Towers Watson competitive study, but are comparator companies for the purposes of this bonus metric.) This metric is calculated as the sum of our E&P segment income and Integrated Gas segment income, as presented in our audited consolidated financial statements. To ensure consistency of this metric when comparing to our comparator companies, adjustments to comparator company segment income are sometimes necessary to reflect certain unusual items included in their results.
     These comparator companies differ slightly from the peer companies used in the Towers Watson competitive study, primarily due to the use of different accounting methods which makes comparing results impractical.
(c) Total of 8 comparator companies, including Marathon Oil. Comparator company U.S. downstream income was adjusted for special items or other like items. The comparator companies for the downstream segment income metric were BP, Chevron, ConocoPhillips, ExxonMobil, Sunoco, Tesoro, and Valero. This metric is not determined using accounting principles generally accepted in the United States. (BP and ExxonMobil are not included in the peer companies used in the Towers Watson competitive study, but are comparator companies for the purposes of this bonus metric.) This metric is calculated as our Refining, Marketing and Transportation segment income before taxes, as presented in our audited consolidated financial statements, divided by the total number of barrels of crude oil throughput at our refineries. To ensure consistency of this metric when comparing to our comparator companies, adjustments to comparator company segment income before taxes are sometimes necessary to reflect certain unusual items included in their results.
(d) Downstream Mechanical Availability represents the percentage of capacity available from critical downstream equipment to perform its primary function, for the entire year. This metric primarily measures the mechanical availability of the processing equipment in our refineries, but also includes critical equipment in our pipeline, marine, and terminal operations.
(e) Excludes Speedway LLC. In the event of a fatality, payout is determined by the Committee. The Occupational Safety and Health Administration (“OSHA”) Recordable Incident Rate is calculated by taking the total number of OSHA recordable incidents, multiplying by 200,000 and dividing by the total number of hours worked.

Organizational and Individual Goals for 2010 Annual Cash Bonus Program

At the beginning of each year, each Marathon Oil executive officer develops performance goals relative to his or her organizational responsibilities, which are required to be directly related to Marathon Oil’s business objectives. Each of our named executive officers developed individual performance commitments for 2010 relative to his or her organizational responsibilities.

The performance commitments for each of our named executive officers were directly related to downstream business objectives. Examples of individual performance commitments for our named executive officers in 2010 included refinery throughput, income per barrel of crude oil throughput, safety, environmental performance, project completions and financial discipline.

In evaluating the individual performance of each of our named executive officers, the most significant factor was achievement of business objectives within his or her organization. Another significant consideration is the named executive officer’s adherence to Marathon Oil’s core values, which emphasize health and safety, environmental stewardship, honesty and integrity, corporate citizenship, high performance, and diversity. These

 

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values are essential to both Marathon Oil’s culture and our culture, and drive how we accomplish our business objectives. For example, our health, safety and environmental stewardship commitment is reflected in officer performance goals regarding personal and process safety.

2010 Performance Achievements for Annual Cash Bonus Program

In evaluating the contributions made by our named executive officers, the Marathon Oil Compensation Committee considered the following achievements during 2010:

 

   

Completed full integration of refinery units added as part of the Garyville Major Expansion project and realized increased refining capacity, establishing Garyville as the third-largest U.S. refinery;

 

   

Speedway named best gasoline brand in the nation in its category, for the second consecutive year in the 2010 EquiTrend Brand Study; and

 

   

Progressed construction of the Detroit Heavy Oil Upgrading Project to approximately 50 percent completion at year-end.

We operated our assets with a high degree of reliability and cost control to maximize profitability. These achievements have us well-positioned to benefit from the ongoing global economic recovery and higher overall demand for our products.

In addition to both our company, organizational and individual performance, the Marathon Oil Compensation Committee considered the level of competition for executive talent within our industry, which increased in 2010 in light of the improving economy. The Marathon Oil Compensation Committee also evaluated the competitiveness of our annual cash bonus program relative to the programs of our peer companies.

Finally, the Marathon Oil Compensation Committee took into account the significant amount of work performed by each of our named executive officers in 2010 in evaluating and preparing for the spin-off.

2010 Annual Bonus Payments

Consistent with Marathon Oil’s pay-for-performance philosophy, the Marathon Oil Compensation Committee rewarded our named executive officers for their contributions to Marathon Oil’s overall strong performance with annual cash bonus payments above target.

2010 Grants of Long-Term Incentive Awards

In 2010, the Marathon Oil Compensation Committee awarded long-term incentives in the form of performance units, stock options and restricted stock. While each long-term incentive award type rewards performance over a multi-year period, the primary purpose and structure of award types differ as illustrated below:

 

Long-term Incentive Award Type

  

Primary Purpose

   Form of
Settlement
  

Compensation Realized

Performance Units

   Reward total stockholder return (“TSR”) relative to companies in the Amex Oil Index (“XOI”)    Cash    Equals from $0 to $2 per unit based on ranking among XOI companies

Stock Options

   Align interests of executives and stockholders    Stock    Equals stock price appreciation from grant date to time of exercise

Restricted Stock

   Retain executive talent    Stock    Equals value of stock upon vesting

 

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After considering the competitive compensation information provided by Towers Watson, the Marathon Oil Compensation Committee granted long-term incentive awards to each of our named executive officers. Due to the nature of long-term incentive awards, the actual long-term incentive value realized by each named executive officer will depend on the price of the underlying stock at the time of vesting or exercise.

Grants of long-term incentive awards were based on intended dollar value, rather than a specific number of performance units, stock options or restricted shares. Intended value reflects standard valuation methodologies (which differ from the grant date fair values determined for accounting purposes under accounting principles generally accepted in the United States and shown in the “2010 Summary Compensation Table” and “Grants of Plan-based Awards in 2010” table). For example, to determine the number of performance units awarded, the targeted dollar value was divided by an expected value ratio, which incorporates factors such as stock price volatility and risk of forfeiture.

For 2010, four of our five named executive officers received the following mix of long-term incentive awards, based on intended value: 40 percent performance units, 40 percent stock options, and 20 percent restricted stock. The Marathon Oil Compensation Committee believes this mix of long-term incentive awards generally provides an appropriate balance between the dual objectives of tying compensation to stock performance and providing retention incentives. The exception was Mr. Bedell, who was promoted to an officer position effective June 1, 2010. During 2010, Mr. Bedell received stock options and restricted stock prior to his promotion; he then received additional restricted stock upon his promotion.

The Marathon Oil Compensation Committee grants annual long-term incentive awards for officers at its regularly scheduled February meeting, the date of which is generally set at least one year in advance. The effective date for grants of awards to officers is the date the Marathon Oil Compensation Committee meets; however, if this committee meets after the market has closed, the grant date is the next trading day. The grant price for stock options is equal to the closing price of a share of Marathon Oil common stock on the grant date. Each long-term incentive award type is discussed in more detail below.

2010 Performance Unit Awards

In 2010, the Marathon Oil Compensation Committee believed that a performance unit program based on Marathon Oil’s total stockholder return (“TSR”) performance relative to peer companies served as a complement to stock options and restricted stock, because the performance unit program provided an incentive to both increase Marathon Oil’s stockholder return and outperform its peers included in the Amex Oil Index (the “XOI”). The XOI is a published stock index which represents a cross-section of publicly traded corporations involved in various phases of the oil and gas industry and provides a meaningful benchmark for comparing Marathon Oil stock performance.

TSR is determined by taking the sum of stock price appreciation or reduction, plus cumulative dividends for the three-year period, and dividing that total by the beginning stock price. For purposes of this calculation, the beginning and ending stock prices are the average of closing stock prices for the month immediately preceding the beginning or ending date of the measurement period.

The target value of each performance unit is $1, with the actual payout varying from $0 to $2 (0% to 200% of target) based on Marathon Oil’s relative TSR ranking for the measurement period. For example, a 100% payout percentage pays out at $1 per unit.

For the three-year performance period ending in 2010, Marathon Oil’s ranking was 11 out of the 13 XOI companies. Because this ranking was in the bottom quartile, there was no payout. The payout percentages for the three-year performance periods ending in 2008 and 2009 were 83.33 percent and 0 percent, respectively. Thus, our named executive officers realized no compensation for performance units for the last two completed cycles.

 

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2010 Stock Option Awards

In 2010, the Marathon Oil Compensation Committee granted a portion of MPC officers’ annual long-term incentive value in the form of stock options. The Committee believes that stock options are inherently performance-based, as option holders only realize benefits if the value of the underlying stock increases following the date of grant.

The grant price of Marathon Oil stock options is equal to the closing sales price per share of Marathon Oil common stock on the grant date, which was February 24, 2010 for the options granted to our named executive officers during 2010. Stock options have a three-year pro-rata vesting period and a maximum term of ten years.

2010 Restricted Stock Awards

In 2010, the Marathon Oil Compensation Committee also granted a portion of the annual long-term incentive value for MPC officers in the form of time-based restricted stock for diversification of the mix of long-term incentive awards and for retention purposes. The restricted stock grants were also intended to help Marathon Oil officers increase their holdings in Marathon Oil stock.

Restricted stock awards for officers vest in full on the third anniversary of the date of grant, which is February 24, 2013. The restricted stock award granted to Mr. Bedell prior to his promotion to an officer position will vest in one-third increments on the first three anniversaries of the grant date. Prior to vesting, restricted stock recipients have the right to vote and receive dividends on the restricted shares.

Post-Employment Benefits for 2010

Retirement

We sponsor and contribute to a tax-qualified defined benefit retirement plan for a broad-based group of employees. Additionally, Marathon Oil sponsors and contributes to a defined contribution retirement plan for a broad-based group of employees. Individuals can contribute to Marathon Oil’s defined contribution retirement plan. Marathon Oil also sponsors retiree medical plans for a broad-based group of employees. Our named executive officers are eligible to participate in these defined benefit and defined contribution retirement plans, as well as the retiree medical plans.

In addition, our named executive officers participate in unfunded, nonqualified defined benefit and defined contribution retirement plans of Marathon Oil and MPC. These plans provide benefits that participants would have otherwise received under our tax-qualified retirement plans but which they did not receive because of Internal Revenue Code limitations.

Under both the tax-qualified and nonqualified retirement and deferred compensation plans, participating employees are eligible for retirement once they have reached age 50 and have ten or more years of vesting service. All of our named executive officers are currently retirement-eligible.

Prior to 2010, the formula under the defined benefit retirement plans was a traditional final-average-pay formula. Effective January 1, 2010, the plans were amended to provide that new benefits accrue under a cash-balance formula. Following this change, plan participants will generally receive their legacy final-average-pay benefit, which will continue to be updated for increases in compensation, plus the accrued cash-balance benefit.

The legacy final-average-pay formula for the nonqualified defined benefit plans provides an enhancement for named executive officers by taking into account the three highest bonuses earned during their last ten years of employment. The benefit formula used for non-officers is based on the highest consecutive three-year compensation, including bonuses, earned during the last ten years of employment, which may or may not include the participant’s three highest bonuses.

 

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Under the cash-balance formula, plan participants receive pay credits based on age and vesting service. For 2010, all of our named executive officers received pay credits equal to 11 percent of compensation as determined under the plans, which is the highest level of pay credit available under the plans.

Each named executive officer is also eligible to participate in the MPC elective nonqualified deferred compensation plan. Under this plan, our named executive officers are eligible to defer up to 20 percent of their salary and bonus each year. The investment options available under these plans generally mirror those available to all employees under the tax-qualified Marathon Oil Company Thrift Plan.

Distributions from the nonqualified plans are made following termination of employment in the form of a lump sum and are compliant with Section 409A of the Internal Revenue Code to the extent required.

In addition, named executive officers’ stock options immediately vest and become exercisable upon retirement. Unvested restricted stock awards are forfeited upon retirement, except in the case of mandatory retirement, in which case unvested restricted stock vests in full. Under Marathon Oil’s mandatory retirement policy, an officer must retire on the first day of the month following the officer’s 65th birthday. For performance units, in the case of retirement where an officer has worked more than half of the performance period, awards may be vested on a prorated basis at the discretion of the Marathon Oil Compensation Committee.

Death or Disability

In the event of death or disability, our named executive officers are entitled to the vested benefits they have accrued under standard benefits programs of Marathon Oil and MPC. Long-term incentive awards would immediately vest in full upon the death of a named executive officer, with performance units vesting at the target level. In the event of disability, long-term incentive awards would continue to vest as if the named executive officer remained employed during the period of disability.

Other Termination

Our named executive officers do not have employment agreements and are not entitled to any special executive severance payments, other than the change-in-control termination benefits described below.

Change-in-Control Termination

Marathon Oil has programs in place that provide severance benefits in the event that an employee is terminated following a change-in-control. This section describes what would occur in the event of a change-in-control of Marathon Oil prior to the effective time of the spin-off.

The Marathon Oil Executive Change in Control Severance Benefits Plan provides certain benefits upon a change-in-control of Marathon Oil and is designed to ensure continuity of management through a change-in-control transaction. Immediately upon a change-in-control of Marathon Oil, all of our named executive officers’ long-term incentive awards would become fully vested and exercisable. Outstanding performance units would vest at the target value upon a change-in-control. The benefits payable to named executive officers in the event they are terminated following a change-in-control or in connection with a “potential change-in-control” are outlined under the heading “—Potential Payments upon Termination or Change-in-Control,” where Marathon Oil’s executive change-in-control policy is described in more detail.

Other Benefits for 2010

Marathon Oil offered very limited perquisites to our named executive officers. Our named executive officers may seek reimbursement for certain tax, estate, and financial planning services up to a specified annual maximum each year, including the year following death or retirement. Our named executive officers were also offered an enhanced annual physical examination.

 

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Marathon Oil’s longstanding corporate policy, which applied in 2010, is that our named executive officers could use corporate aircraft for business purposes only, unless otherwise authorized by the Marathon Oil CEO. Occasionally spouses or other guests will accompany our named executive officers on the aircraft when space is available on business-related flights. When the spouse or guest’s travel does not meet the Internal Revenue Service standard for business use, the cost of that travel is imputed as income to the named executive officer.

2010 Tax Considerations

The Marathon Oil Compensation Committee considered the tax effects to Marathon Oil when making executive compensation decisions for 2010. In addition, the Marathon Oil Compensation Committee had, and continues to have, a practice of delivering compensation in a tax-efficient manner whenever reasonable. However, the priority of the Marathon Oil Compensation Committee is to provide compensation that reflects performance and is competitive. Therefore, some of the compensation awarded by the Marathon Oil Compensation Committee is not deductible by Marathon Oil due to the limitations of Section 162(m) of the Internal Revenue Code.

Section 162(m) states that the amount of compensation that Marathon Oil may deduct each year for its Chief Executive Officer and each of the three most highly paid officers (other than its Chief Financial Officer, who was excluded from this provision for 2010) is $1,000,000. Elements of compensation which qualify as “performance-based compensation” are deductible even if in excess of this $1,000,000 limit.

Other than time-based restricted stock, short-term and long-term incentives awarded to MPC officers in 2010 were designed to be performance-based compensation and therefore should be fully deductible. Time-based restricted stock awards would only be deductible if compensation for the year does not exceed the Section 162(m) limitation when the awards vest. For 2010, the only MPC officer who was among the three most highly paid Marathon Oil officers was Mr. Heminger, and a portion of his compensation was not deductible.

We believe the nonqualified deferred compensation plans and other benefits at Marathon Oil comply with Section 409A of the Internal Revenue Code. In general, Section 409A imposes additional income taxes, as well as premium interest, unless the form and timing of deferred compensation payments have been fixed in order to eliminate both officer and company discretion.

Benefits and Equity Compensation Decisions in Connection with the Spin-Off

MPC officers will be treated like all other MPC employees with respect to the impact of the spin-off on their benefits and equity compensation. For a discussion of provisions concerning retirement, health and welfare benefits to our employees and the treatment of outstanding Marathon Oil equity-based compensation awards upon completion of the spin-off, see “Relationship With Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Employee Matters Agreement.” The spin-off is not a change-in-control and therefore will not entitle MPC officers to any change-in-control benefits.

Equity-Based Compensation

Following the spin-off, all holders of outstanding awards of vested stock options and stock appreciation rights will receive adjusted Marathon Oil awards and substitute MPC awards. Similarly, employees who hold stock awards which have vested will be treated like all other Marathon Oil stockholders. All employee holders of unvested stock options will hold options in the employee’s post-spin-off company. There are no unvested stock appreciation rights outstanding. All employee holders of unvested restricted stock and unvested restricted stock units will hold shares or units in the employee’s post-spin-off company. The effects of the spin-off on equity-based awards are described in more detail under “Relationship With Marathon Oil After the Spin-Off—Agreements Between Marathon Oil and Us—Employee Matters Agreement.”

 

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Officer Performance Units

Under Marathon Oil’s executive compensation program, each of our named executive officers received an annual grant of performance units. Performance units are based on Marathon Oil’s three-year TSR relative to the other companies in the XOI and are paid out in cash at the conclusion of each three-year performance period. Assuming that the distribution occurs on June 30, 2011, three performance periods will be affected as a result of the spin-off: the 2009 grant performance period (2009-2011), which will be five-sixths complete as of June 30, 2011; the 2010 grant performance period (2010-2012), which will be one-half complete as of June 30, 2011; and the 2011 grant performance period (2011-2013), which will be one-sixth complete as of June 30, 2011.

We anticipate that the Marathon Oil Compensation Committee will approve a cash payout of outstanding performance units granted to MPC officers following the distribution date. This cash payout is expected to be based on TSR from the start of each performance period through June 30, 2011. Because the 2009 grant will be five-sixths complete, we anticipate that the Marathon Oil Compensation Committee will approve a full payout of this grant based on performance. The cash payout for the other two outstanding grants will be prorated based on the portion of the performance period that is complete as of June 30, 2011. Thus, the 2010 grant will be prorated at a rate of one-half; and the 2011 grant will be prorated at a rate of one-sixth.

To replace the portion of the 2010 and 2011 grants that will be cancelled as a result of the proration described above, we anticipate that the Marathon Oil Compensation Committee will grant prorated replacement performance unit awards to our officers. These grants will be made prior to and conditioned upon the spin-off. Each of our officers will receive two replacement grants, one for the remaining 18 months of the 2010 grant and one for the remaining 30 months of the 2011 grant. These prorated replacement grants will be earned based on TSR performance measured from the spin-off date against a group of peer companies that the Marathon Oil Compensation Committee determines to be appropriate for MPC.

Our Anticipated Compensation Programs

We believe the Marathon Oil executive compensation programs were both effective at retaining and motivating MPC officers and competitive as compared to compensation programs at other downstream peer companies. As described below, the executive compensation programs that will initially be adopted by MPC will be very similar to those in place at Marathon Oil immediately prior to the spin-off. However, after the spin-off, our Compensation Committee will continue to evaluate our compensation and benefit programs and may make adjustments as necessary to meet prevailing business needs.

Compensation Objectives

The MPC executive compensation program after the spin-off will be designed to achieve the following objectives:

 

   

Attract talented officers with proven experience and success in the industry to accept the risks and responsibilities of officer positions in a new publicly traded company;

 

   

Motivate officers by rewarding them for individual and collective contributions to MPC’s long-term success, including increasing stockholder value; and

 

   

Retain the highly experienced and knowledgeable MPC executive management team who will directly impact MPC’s current and future success.

Immediately following the spin-off, MPC intends to adopt the same components of compensation used by Marathon Oil, consisting of base salary, annual cash bonus and long-term incentives.

Compensation Program Design

We anticipate that our Compensation Committee will engage a consultant to provide consulting services on MPC executive compensation matters. We anticipate that the consultant will advise on matters such as an appropriate mix of compensation, program design and peer companies. Our Compensation Committee will use

 

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the information provided by the consultant to ensure each element of compensation is competitive and is designed to align with the level of performance achieved.

We do not expect any differentiation by individual among our named executive officers in the types of compensation paid, because all of our officers will initially be covered by the same compensation plans, policies and practices.

In setting compensation levels, our Compensation Committee will consider company performance, individual performance and external market data. Other factors our Compensation Committee may consider include each MPC officer’s area of responsibility, internal equity and experience.

Stock Ownership Requirements and Anti-Hedging Policy

We anticipate that our Compensation Committee will adopt stock ownership requirements for MPC officers. These requirements reinforce the alignment of interests between our officers and stockholders. The expected stock ownership requirements are as follows:

 

   

Chief Executive Officer—five times base salary

 

   

Executive Vice Presidents—four times base salary

 

   

Senior Vice Presidents—three times base salary

 

   

Vice Presidents—two times base salary

Officers will have five years from their appointment date or the distribution date, whichever is later, to achieve the designated stock ownership level.

In order to ensure that MPC officers bear the full risks of stock ownership, we expect that our Compensation Committee will adopt policies that prohibit MPC officers from engaging in hedging transactions related to our stock or from pledging or creating a security interest in any MPC shares they hold, including shares in excess of the ownership requirement.

Base Salary

Our Compensation Committee will review the base salary of each MPC officer annually. In making base salary decisions, we anticipate that our Compensation Committee will consider factors including external market data for similar positions, the relative value of each position to MPC, and each officer’s individual performance.

2011 Annual Cash Bonus

Following the spin-off, we anticipate that our Compensation Committee will adopt a bonus program for the MPC officers similar to the Marathon Oil bonus program described above. The MPC officers’ annual cash bonus program will link annual bonus payments to company performance and each individual officer’s performance for the year.

Bonus Target Opportunities . Each year, the Marathon Oil Compensation Committee evaluated bonus targets for the MPC officers to ensure competitiveness. We anticipate that our Compensation Committee will undertake a similar evaluation and establish bonus targets for MPC officers that remain competitive with downstream peer companies.

Performance Metrics for Annual Cash Bonus Program . Metrics commonly used in the refining, marketing and pipeline transportation business to measure company performance include:

 

   

Operating Income per Barrel of Crude Oil Throughput as compared to peer companies

 

   

Mechanical Availability*

 

* Mechanical Availability represents the percentage capacity available from critical downstream equipment to perform its primary function, for the entire year. This metric primarily measures the mechanical availability of the processing equipment in our refineries, but also includes critical equipment in our pipeline, marine and terminal operations.

 

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Successful Completion of Capital Projects and Strategic Initiatives (e.g., progress on Detroit Heavy Oil Upgrading Project)

 

   

Safety and Environmental Measures (e.g., OSHA Recordable Incident Rate)

In addition to company performance metrics, we anticipate that our Compensation Committee will also consider individual performance commitments in determining annual cash bonus payments. Examples of individual performance commitments for 2011 include refinery throughput, income per barrel of crude oil throughput, safety, environmental performance, project completions and financial discipline.

Our Compensation Committee may also consider additional relevant factors, including the marketplace for executive talent within our industry and the competitiveness of our annual cash bonus program relative to our peers.

Grants of Long-Term Incentive Awards

We believe that our Compensation Committee will view long-term incentive awards as a critical element in the mix of compensation. Long-term incentive awards will link compensation of MPC officers to long-term increases in the market price of our common stock, and therefore align the interests of MPC officers to those of our stockholders.

Before the distribution date, we will adopt the 2011 MPC Incentive Compensation Plan, under which MPC will grant long-term incentive awards. For more information about this plan, see “—MPC 2011 Incentive Compensation Plan.” We anticipate that our Compensation Committee will evaluate competitive practices within our industry, including long-term incentive award types and levels. We expect that our grant process will be similar to the Marathon Oil grant process described above.

Post-Employment Benefits

Retirement . Following the separation, we will sponsor tax-qualified defined benefit and defined contribution retirement plans for a broad-based group of employees. We will contribute to both the defined benefit and defined contribution retirement plans, and individual employees will be eligible to contribute to the defined contribution retirement plan. We will also sponsor retiree medical plans for a broad-based group of employees. MPC officers will be eligible to participate in these defined benefit and defined contribution retirement plans, as well as the retiree medical plans.

In addition, MPC officers will continue to participate in unfunded, nonqualified defined benefit and defined contribution retirement plans. Each of the MPC officers will also remain eligible to participate in an elective nonqualified deferred compensation plan. Under this plan, MPC officers are eligible to defer up to 20 percent of their salary and bonus amounts each year. Distributions from the nonqualified plans will be made following termination or retirement in the form of a lump sum and will comply with Section 409A of the Internal Revenue Code to the extent required. For a more detailed description of our nonqualified plans, see “—Nonqualified Deferred Compensation.”

Under both our tax-qualified and nonqualified retirement plans, our employees will be eligible for retirement once they have reached age 50 and have ten or more years of vesting service. All five MPC named executive officers are currently retirement-eligible.

Substitute MPC stock options issued to MPC officers in connection with the spin-off will be subject to the same terms and conditions as the original Marathon Oil options. Therefore, substitute MPC stock options issued in connection with the spin-off will immediately vest and become exercisable upon retirement. Substitute MPC restricted stock awards issued in replacement of unvested restricted stock awards granted before the distribution date will be forfeited upon retirement, except in the case of mandatory retirement, where restricted stock awards will vest in full.

 

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Death or Disability . In the event of death or disability, MPC officers would be entitled to the vested benefits they have accrued under our standard benefits programs. Long-term incentive awards granted prior to the distribution date would immediately vest in full upon the death of an MPC officer. In the event of disability, long-term incentive awards granted prior to the distribution date would continue to vest as if the MPC officer remained employed during the period of disability.

Other Termination . Except as described below, no special employment or severance agreements will be in place for the MPC officers on the distribution date.

Change-in-Control Termination . We anticipate that we will adopt a change-in-control severance benefits policy for the MPC officers that provides benefits in the event that an MPC officer is terminated following a change-in-control of MPC. The change-in-control severance benefits policy for the MPC officers will be substantially similar to the policy for Marathon Oil officers described above. We anticipate that, upon a change-in-control of MPC, all MPC officers’ long-term incentive awards will become fully vested and exercisable. We believe that having a change-in-control policy encourages officers to act in the best interest of our stockholders if a change-in-control transaction is under consideration.

Other Benefits . We anticipate that MPC officers will be offered limited perquisites, similar to the Marathon Oil perquisites described above.

Tax Considerations

We anticipate that our Compensation Committee will consider the tax consequences of our compensation programs for MPC officers. While providing competitive compensation and benefits for MPC officers will remain our primary goal, our compensation programs will be structured in a tax-efficient manner whenever reasonable.

Compensation Committee of Our Board of Directors

The Compensation Committee of our Board of Directors will be charged with overseeing and approving all compensation for our officers. Our Compensation Committee will be comprised only of independent, non-employee directors.

We expect that our Compensation Committee will meet at least four times a year and will have the opportunity to meet in executive session at each of its meetings. When practicable, our Compensation Committee will preview and discuss significant compensation decisions at one meeting before giving formal approval at a subsequent meeting. With the help of its compensation consultant and our staff, we expect that our Compensation Committee will keep abreast of and discuss legal and regulatory developments pertaining to executive compensation throughout each year.

We anticipate that our Compensation Committee will seek significant input from our CEO on compensation decisions and performance appraisals for all other officers. However, all final compensation decisions for our officers will be approved by our Compensation Committee.

 

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Executive Compensation Tables and Other Information

The following table summarizes the total compensation awarded to, earned by, or paid to Mr. Heminger, President and Chief Executive Officer, Mr. Peiffer, Senior Vice President and Chief Financial Officer, and the other three most highly compensated executive officers of MPC who were serving as officers at Marathon Oil at the end of 2010 (collectively, “named executive officers”) for services rendered as named executive officers during 2010, 2009 and 2008. No information is provided for Mr. Bedell for 2008 and 2009, because he did not become one of our executive officers until 2010.

2010 Summary Compensation Table

 

Name and Principal
Position

  Year     Salary
(1) ($)
    Bonus
(2) ($)
    Stock
Awards
(3) ($)
    Option
Awards
(4) ($)
    Non-Equity
Incentive Plan
Compensation
(5) ($)
    Change in
Pension Value
and
Nonqualified
Deferred
Compensation
Earnings

(6) ($)
    All Other
Compensation
(7) ($)
    Total ($)  

G. R. Heminger

    2010      $ 918,750      $ 1,200,000      $ 554,230      $ 1,113,088      $ 0      $ 2,159,968      $ 144,492      $ 6,090,528   

President & Chief

Executive Officer

    2009      $ 900,000      $ 950,000      $ 619,320      $ 797,088      $ 0      $ 3,609,445      $ 156,399      $ 7,032,252   
    2008      $ 856,250      $ 1,100,000      $ 549,036      $ 754,580      $ 841,633      $ 1,056,329      $ 135,278      $ 5,293,106   

G. L. Peiffer

    2010      $ 400,000      $ 500,000      $ 96,261      $ 193,061      $ 0      $ 807,705      $ 77,922      $ 2,074,949   

Senior Vice President &

Chief Financial Officer

    2009      $ 400,000      $ 365,000      $ 100,044      $ 128,309      $ 0      $ 1,366,061      $ 71,657      $ 2,431,071   
    2008      $ 396,250      $ 410,000      $ 97,848      $ 137,906      $ 189,409      $ 336,586      $ 68,035      $ 1,636,034   

R. D. Bedell

    2010      $ 352,455      $ 350,000      $ 211,949      $ 192,859      $ 0      $ 582,899      $ 53,919      $ 1,744,081   

Senior Vice President,

Refining

                 

A. R. Kenney

    2010      $ 393,750      $ 500,000      $ 107,929      $ 214,417      $ 0      $ 704,599      $ 79,891      $ 2,000,586   

President, Speedway LLC

    2009      $ 375,000      $ 450,000      $ 100,044      $ 128,309      $ 0      $ 1,028,812      $ 39,281      $ 2,121,446   
    2008      $ 371,262      $ 400,000      $ 97,848      $ 130,100      $ 178,826      $ 458,432      $ 36,350      $ 1,672,818   

J. M. Wilder

    2010      $ 360,000      $ 295,000      $ 90,427      $ 181,955      $ 0      $ 536,595      $ 58,408      $ 1,522,385   

Vice President, General

Counsel & Secretary

    2009      $ 353,333      $ 295,000      $ 133,372      $ 106,520      $ 0      $ 889,782      $ 65,054      $ 1,843,061   
    2008      $ 345,000      $ 315,000      $ 70,668      $ 94,972      $ 136,745      $ 140,961      $ 54,420      $ 1,157,766   

 

(1) For most named executive officers, the salaries shown in this column reflect three months at one annual salary rate and nine months at the new annual salary rate, which was effective April 1, 2010. Because Mr. Bedell received two salary increases effective April 1, 2010 and June 1, 2010 (upon his promotion to his current officer position), the salary shown in this column reflects three months at one annual salary rate, two months at another annual salary rate, and seven months at a third annual salary rate. Neither Mr. Peiffer nor Mr. Wilder received a base salary increase in 2010.
(2) The amounts shown in this column reflect the value of annual cash bonus awards.
(3) This column reflects the aggregate grant date fair value in accordance with generally accepted accounting principles in the United States regarding stock compensation. Assumptions used in the calculation of this amount are included in footnote 21 to Marathon Oil’s financial statements for the year ended December 31, 2010, footnote 23 to Marathon Oil’s financial statements for the year ended December 31, 2009, and in footnote 24 to Marathon Oil’s financial statements for the year ended December 31, 2008.
(4) This column reflects the aggregate grant date fair value in accordance with generally accepted accounting principles in the United States regarding stock compensation. Assumptions used in the calculation of this amount are included in footnote 21 to Marathon Oil’s financial statements for the year ended December 31, 2010, footnote 23 to Marathon Oil’s financial statement for the year ended December 31, 2009, and in footnote 24 to Marathon Oil’s financial statements for the year ended December 31, 2008.
(5) The amounts shown in this column reflect the vested value of performance units earned by our named executive officers during the three-year performance periods that ended on December 31, 2010, December 31, 2009 and December 31, 2008, respectively. While there was a payout for the cycle that ended in 2008, there was no payout for the cycles that ended in 2009 and 2010. Mr. Bedell did not receive a performance unit grant for any of these periods.
(6) This column reflects the annual change in accumulated benefits under Marathon Oil’s retirement plans. See “—Nonqualified Deferred Compensation” for more information about Marathon Oil’s defined benefit plans and the assumptions used in the calculation of these amounts. There are no deferred compensation earnings reported in this column because Marathon Oil’s nonqualified deferred compensation plans do not provide above-market or preferential earnings.

 

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(7) Marathon Oil offers very limited perquisites to named executive officers, which together with company contributions to defined contribution plans, comprise the All Other Compensation column. All Other Compensation for 2010 is summarized below:

 

Name

  Personal Use of
Company
Aircraft(a)

($)
    Company
Physicals(b)
($)
    Tax &
Financial
Planning(c)
($)
    Miscellaneous
Perks & Tax
Allowance
Gross Ups(d)
($)
    Company
Contributions
to Defined
Contribution
Plans(e)

($)
    Total All Other
Compensation
($)
 

G. R. Heminger

  $ 579      $ 4,058      $ 8,500      $ 563      $ 130,792      $ 144,492   

G. L. Peiffer

  $ 0      $ 4,058      $ 19,751      $ 563      $ 53,550      $ 77,922   

R. D. Bedell

  $ 2,917      $ 4,058      $ 8,000      $ 1,060      $ 37,884      $ 53,919   

A. R. Kenney

  $ 0      $ 4,058      $ 8,660      $ 0      $ 67,173      $ 79,891   

J. M. Wilder

  $ 0      $ 4,058      $ 8,500      $ 0      $ 45,850      $ 58,408   

 

  (a) The amounts shown in this column reflect the aggregate incremental cost of personal use of Marathon Oil aircraft by our named executive officers for the period from January 1, 2010 through December 31, 2010.

 

       Officers are occasionally permitted to invite their spouses or other guests to accompany them on business trips when space is available. These amounts reflect our variable cost to transport a named executive officer’s spouse or other guest accompanying the officer or to transport a named executive officer who accompanies other business travelers for a non-business purpose.

 

       We have estimated our aggregate incremental cost using a methodology that reflects the average costs of operating the aircraft, such as fuel costs, trip-related maintenance, crew travel expenses, trip-related fees and storage costs, communications charges, and other miscellaneous variable costs. Fixed costs that do not change with usage such as pilot compensation, the purchase and lease of the aircraft, and maintenance not related to travel are excluded from the calculation of our incremental cost. We believe that this method provides a reasonable estimate of our incremental cost and ensures that some “cost” is allocated to each passenger on each trip. However, use of this method may overstate our actual incremental cost where our aircraft would have flown on a trip for business purposes anyway and space would have been available at little or no incremental cost to transport a named executive officer or his or her guest who was not traveling for business purposes.

 

  (b) All employees, including our named executive officers, are eligible to receive an annual physical. However, officers may receive an enhanced physical under the executive physical program. This column reflects the average incremental cost of the executive physical program over the employee physical program. Due to Health Insurance Portability and Accountability Act ("HIPAA") confidentiality requirements, we cannot disclose actual usage of this program by individual officers.

 

  (c) This column reflects reimbursement for professional advice related to tax, estate, and financial planning up to a specified maximum, not to exceed $15,000 for a calendar year. The amount shown for Mr. Peiffer reflects a reimbursement of $15,000 that was applied to the 2010 calendar year and a reimbursement of $4,751 that was applied to the 2009 calendar year.

 

  (d) The amounts shown in this column for Mr. Heminger and Mr. Peiffer include the value of gifts received at two company events in the total amount of $489 and associated tax allowances attributed to these gifts in the amount of $74. The amount shown for Mr. Bedell is for gifts received at two company events in the total amount of $312, as well as a tax allowance related to use of a company vehicle in the amount of $748.

 

  (e) This column reflects amounts contributed by Marathon Oil under the tax-qualified Marathon Oil Company Thrift Plan and related nonqualified deferred compensation plans. See “–Nonqualified Deferred Compensation” for more information about the non-qualified plans.

 

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Grants of Plan-Based Awards in 2010

The following table provides information about all non-equity incentive plan awards (specifically, grants of performance units to be paid out in cash in 2013) and equity awards (specifically, stock options and restricted stock) granted to each named executive officer during 2010. The awards listed in the table were granted under the 2007 Incentive Compensation Plan (the “2007 Plan”) and are described in more detail in “Compensation Discussion and Analysis.”

 

Name

  Type of
Award
  Grant
Date
    Estimated Future Payouts Under
Non-Equity Incentive Plan Awards
    All Other
Stock
Awards:
Number of
Shares of
Stock or
Units

(#)
    All Other
Option
Awards:
Number of
Securities
Underlying
Options

(#)
    Exercise or
Base Price of
Option
Awards

($)
    Grant
Date Fair
Value of
Stock and
Option
Awards
(2) ($)
 
      Unit
Price
(1)
    Threshold
($)
    Target
($)
    Maximum
($)
         

G. R. Heminger

  Performance
Units
    2/24/2010      $ 1      $ 671,250      $ 1,342,500      $ 2,685,000           
  Stock Options     2/24/2010                  130,300      $ 29.17      $ 1,113,088   
  Restricted
Stock
    2/24/2010                19,000          $ 554,230   

G. L. Peiffer

  Performance
Units
    2/24/2010      $ 1      $ 116,150      $ 232,300      $ 464,600           
  Stock Options     2/24/2010                  22,600      $ 29.17      $ 193,061   
  Restricted
Stock
    2/24/2010                3,300          $ 96,261   

R. D. Bedell

  Stock Options     5/26/2010                  22,000      $ 30.37      $ 192,859   
  Restricted
Stock
    4/1/2010                3,488          $ 111,930   
  Restricted
Stock
    6/1/2010                3,313          $ 100,019   

A. R. Kenney

  Performance
Units
    2/24/2010      $ 1      $ 129,100      $ 258,200      $ 516,400           
  Stock Options     2/24/2010                  25,100      $ 29.17      $ 214,417   
  Restricted
Stock
    2/24/2010                3,700          $ 107,929   

J. M. Wilder

  Performance
Units
    2/24/2010      $ 1      $ 109,700      $ 219,400      $ 438,800           
  Stock Options     2/24/2010                  21,300      $ 29.17      $ 181,955   
  Restricted
Stock
    2/24/2010                3,100          $ 90,427   

 

(1) This column reflects the target dollar value of each performance unit.
(2) The amounts shown in this column reflect the total grant date fair value of stock options and restricted stock granted in 2010 in accordance with generally accepted accounting principles in the United States regarding stock compensation. The Black-Scholes value used for the stock options granted on February 24, 2010 was $8.5425 and the value used for the stock options granted on June 1, 2010 was $8.7663. The fair market value used for restricted stock awards granted on February 24, 2010 was $29.17, on April 1, 2010 was $32.09 and on June 1, 2010 was $30.19. Assumptions used in the calculation of these amounts are included in footnote 21 to Marathon Oil’s financial statement for the year ended December 31, 2010.

Performance Units (Non-Equity Incentive Plan Awards)

On February 24, 2010, the Marathon Oil Compensation Committee granted performance units to our named executive officers other than Mr. Bedell under the 2007 Plan. Vesting of these units is tied to Marathon Oil’s Total Shareholder Return (“TSR”) as compared to the TSR of each of the member companies within the XOI for the 2010 through 2012 performance period. Each performance unit has a target value of $1 and is payable in cash, with payout varying from $0 to $2 per unit based on actual performance. No dividends are paid and no interest accrues on outstanding performance units. If an officer retires after completing half of the performance period, at the Marathon Oil Compensation Committee’s discretion the officer will be eligible to receive a payout on a prorated basis. In the event of the death of an officer or a change-in-control of Marathon Oil before the end of the performance period, all performance units would immediately vest at target levels. If an officer terminates employment under any other circumstance, the award would be forfeited.

 

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Stock Options (Option Awards)

As noted in the table, stock options were granted to most of our named executive officers on February 24, 2010. These options are scheduled to vest in one-third increments on the first, second, and third anniversaries of the date of grant. In the event of the death or retirement of the officer, the options would immediately vest in full. Upon voluntary or involuntary termination, unvested options would be forfeited. Following the retirement (whether mandatory or not) or death of an officer, the options would remain exercisable until the earlier of February 24, 2020 or five years from the date of retirement or death. In the event of a change-in-control, the options would immediately vest in full and remain exercisable for the original term of the option.

Stock options were granted to Mr. Bedell on May 26, 2010. These options will vest on the first, second and third anniversaries of the date of grant. In the event of death, the options would immediately vest in full. In the event of retirement, unvested options would be forfeited. Upon voluntary or involuntary termination, unvested options would be forfeited. Following retirement (whether mandatory or not) or death, the options would remain exercisable until the earlier of May 26, 2020 or three years from the date of retirement or death. In the event of a change-in-control, the options would immediately vest in full and remain exercisable for the original term of the option.

Restricted Stock (Stock Awards)

As noted in the table, the Marathon Oil Compensation Committee granted restricted stock to most of our named executive officers on February 24, 2010. The restricted stock awards are scheduled to vest in full on the third anniversary of the grant date. Dividends are paid on all restricted stock at the same time and in the same manner that dividends are paid to other stockholders. If an officer retires under our mandatory retirement policy, unvested restricted stock would vest in full upon the mandatory retirement date (the first day of the month following the officer’s 65th birthday). In the event of the death of the officer or a change-in-control, the restricted stock award would immediately vest in full. If the officer retires or otherwise leaves Marathon Oil prior to the vesting date, the award would be forfeited.

Mr. Bedell was granted restricted stock on April 1, 2010 and June 1, 2010. The shares granted on June 1 have the same terms and conditions described above. The shares granted on April 1 will vest in one-third increments on the first, second, and third anniversaries of the grant date. In the event of death or a change-in-control, this restricted stock award would immediately vest in full. If Mr. Bedell retires (whether mandatory or not) or otherwise leaves Marathon Oil prior to the vesting date, this award would be forfeited.

 

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Outstanding Equity Awards at 2010 Fiscal Year-End

The following table provides information about the unexercised options (vested and unvested), vested SARs, and unvested restricted stock held by each named executive officer as of December 31, 2010.

 

              Stock Option Awards      Stock Awards  

Name

   Grant
Date
     Number of
Securities
Underlying
Unexercised
Options/
SARs
Exercisable
(#)
     Number of
Securities
Underlying
Unexercised
Options/
SARs
Unexercisable
(#)
    Option
Exercise
Price
($)
     Option
Expiration
Date
     Number
of Shares
or Units
of Stock
That
Have Not
Vested(7)

(#)
     Market
Value of
Shares or
Units of
Stock
That
Have Not
Vested(8)
($)
 

G. R. Heminger

     5/29/01         40,000         0      $ 16.260         5/29/2011         
     5/26/04         78,200         0      $ 16.805         5/26/2014         
     5/25/05         77,000         0      $ 23.825         5/25/2015         
     6/1/06         75,600         0      $ 37.818         6/1/2016         
     5/30/07         74,600         0      $ 61.050         5/30/2017         
     2/27/08         38,666         19,334 (1)    $ 54.360         2/27/2018         
     2/25/09         43,900         87,800 (2)    $ 23.820         2/25/2019         
     2/24/10         0         130,300 (3)    $ 29.170         2/24/2020         
                               
        427,966         237,434              
                   55,100       $ 2,040,353   
                   

G. L. Peiffer

     5/29/01         30,000         0      $ 16.260         5/29/2011         
     5/26/04         93,600         0      $ 16.805         5/26/2014         
     5/25/05         40,800         0      $ 23.825         5/25/2015         
     6/1/06         17,000         0      $ 37.818         6/1/2016         
     5/30/07         13,400         0      $ 61.050         5/30/2017         
     2/27/08         7,066         3,534 (1)    $ 54.360         2/27/2018         
     2/25/09         7,066         14,134 (2)    $ 23.820         2/25/2019         
     2/24/10         0         22,600 (3)    $ 29.170         2/24/2020         
                               
        208,932         40,268              
                   9,300       $ 344,379   

R. D. Bedell

     5/28/02         8,000         0      $ 14.060         5/28/2012         
     5/28/03         7,600         0      $ 12.758         5/28/2013         
     5/26/04         14,000         0      $ 16.805         5/26/2014         
     6/10/05         26,000         0      $ 25.835         6/10/15         
     6/1/06         26,000         0      $ 37.818         6/1/16         
     5/30/07         18,000         0      $ 61.050         5/30/2017         
     5/28/08         8,000         4,000 (4)    $ 51.170         5/28/18         
     5/27/09         7,333         14,667 (5)    $ 29.240         5/27/19         
     5/26/10         0         22,000 (6)    $ 30.370         5/26/20         
                               
        114,933         40,667              
                   7,250       $ 268,468   

A. R. Kenney

     5/28/02         40,000         0      $ 14.060         5/28/2012         
     5/26/04         45,200         0      $ 16.805         5/26/2014         
     5/25/05         27,200         0      $ 23.825         5/25/2015         
     6/1/06         16,000         0      $ 37.818         6/1/2016         
     5/30/07         12,600         0      $ 61.050         5/30/2017         
     2/27/08         6,666         3,334 (1)    $ 54.360         2/27/2018         
     2/25/09         7,066         14,134 (2)    $ 23.820         2/25/2019         
     2/24/10         0         25,100 (3)    $ 29.170         2/24/2020         
                               
        154,732         42,568              
                   9,700       $ 359,191   

J. M. Wilder

     5/26/04         67,400         0      $ 16.805         5/26/2014         
     5/25/05         29,400         0      $ 23.825         5/25/2015         
     6/1/06         12,200         0      $ 37.818         6/1/2016         
     5/30/07         9,000         0      $ 61.050         5/30/2017         
     2/27/08         4,866         2,434 (1)    $ 54.360         2/27/2018         
     2/25/09         5,866         11,734 (2)    $ 23.820         2/25/2019         
     2/24/10         0         21,300 (3)    $ 29.170         2/24/2020         
                               
        128,732         35,468              
                   8,976       $ 332,381   

 

(1) This stock option grant is scheduled to become exercisable in one-third increments over a three-year period. The remaining unvested portion of the grant will become exercisable on February 27, 2011.

 

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(2) This stock option grant is scheduled to become exercisable in one-third increments over a three-year period. The remaining unvested portion of the grant will become exercisable in one-half increments on February 25, 2011 and February 25, 2012.
(3) This stock option grant is scheduled to become exercisable in one-third increments over a three-year period. The unvested portion of the grant will become exercisable in one-third increments on February 24, 2011, February 24, 2012, and February 24, 2013.
(4) This stock option grant is scheduled to become exercisable in one-third increments over a three-year period. The remaining unvested portion of the grant will become exercisable on May 28, 2011.
(5) This stock option grant is scheduled to become exercisable in one-third increments over a three-year period. The remaining unvested portion of the grant will become exercisable in one-half increments on May 27, 2011 and May 27, 2012.
(6) This stock option grant is scheduled to become exercisable in one-third increments over a three-year period. The unvested portion of the grant will become exercisable in one-third increments on May 26, 2011, May 26, 2012, and May 26, 2013.
(7) This column reflects the number of shares of unvested restricted stock held by each officer on December 31, 2010. Restricted stock grants are generally scheduled to vest on the third anniversary of the date of grant. The exceptions are the grants made to Mr. Bedell on May 1, 2008 and April 1, 2010 and the grant made to Mr. Wilder on October 1, 2009, which are scheduled to vest in one-third increments over a three-year period.

 

Name

   Grant Date      # of Unvested Shares      Vesting Date

G. R. Heminger

     2/27/08         10,100       2/27/11
     2/25/09         26,000       2/25/12
     2/24/10         19,000       2/24/13
              
        55,100      

G. L. Peiffer

     2/27/08         1,800       2/27/11
     2/25/09         4,200       2/25/12
     2/24/10         3,300       2/24/13
              
        9,300      

R. D. Bedell

     5/1/08         449       5/1/11
     4/1/10         3,488       4/1/11, 4/1/12, 4/1/13
     6/1/10         3,313       6/1/13
              
        7,250      

A. R. Kenney

     2/27/08         1,800       2/27/11
     2/25/09         4,200       2/25/12
     2/24/10         3,700       2/24/13
              
        9,700      

J. M. Wilder

     2/27/08         1,300       2/27/11
     2/25/09         3,500       2/25/12
     10/1/09         1,076       10/1/11, 10/1/12
     2/24/10         3,100       2/24/13
              
        8,976      

 

(8) This column reflects the aggregate value of all shares of unvested restricted stock held by the officers on December 31, 2010, using the year-end closing stock price of $37.03.

Option Exercises and Stock Vested in 2010

The following table provides certain information concerning stock options exercised during 2010 by each named executive officer, as well as restricted stock vesting during 2010.

 

     Option Awards      Stock Awards  

Name

   Number
of Shares
Acquired
on
Exercise
(#)
     Value
Realized on
Exercise (1)
($)
     Number
of Shares
Acquired
on
Vesting
(#)
     Value
Realized
on
Vesting (2)
($)
 

G. R. Heminger

     0       $ 0         12,000       $ 369,600   

G. L. Peiffer

     0       $ 0         2,200       $ 67,760   

R. D. Bedell

     0       $ 0         448       $ 14,502   

A. R. Kenney

     0       $ 0         2,000       $ 61,600   

J. M. Wilder

     0       $ 0         1,938       $ 61,208   

 

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(1) This column reflects the actual pre-tax gain realized by our named executive officers upon exercise of an option, which is the fair market value of the shares on the date of exercise less the grant price.
(2) This column reflects the actual pre-tax gain realized by the named executive officers upon vesting of restricted stock, which is the fair market value of the shares on the date of vesting.

Pension Benefits

Marathon Oil provides tax-qualified retirement benefits to its employees, including our named executive officers, under the Retirement Plan of Marathon Oil Company and the Marathon Petroleum Retirement Plan (the “Marathon Retirement Plans”). While employees of our Speedway LLC subsidiary generally do not participate in the Marathon Retirement Plans, some receive tax-qualified retirement benefits under the Speedway Retirement Plan. In addition, Marathon Oil sponsors the Marathon Oil Company Excess Benefit Plan, the Marathon Petroleum Excess Benefit Plan, and our Speedway LLC subsidiary sponsors the Speedway Excess Benefit Plan (the “Excess Plans”) for the benefit of a select group of management and highly compensated employees.

The pension table below shows the actuarial present value of accumulated benefits payable to each of our named executive officers under the Marathon Retirement Plans, the Speedway Retirement Plan and the defined benefit portion of the Excess Plans as of December 31, 2010. These values have been determined using actuarial assumptions consistent with those used in our financial statements.

2010 Pension Benefits

 

Name

  

Plan Name

   Number
of Years
of
Credited
Service(1)
(#)
     Present
Value of
Accumulated
Benefit(2) ($)
     Payments
During
Last
Fiscal
Year ($)
 

G. R. Heminger

   Marathon Petroleum Retirement Plan      30.08       $ 1,269,144       $ 0   
   Marathon Petroleum Excess Benefit Plan      30.08       $ 10,083,929       $ 0   
   Speedway Retirement Plan      6.48       $ 215,413       $ 0   
   Speedway Excess Benefit Plan      6.48       $ 2,010,763       $ 0   

G. L. Peiffer

   Marathon Petroleum Retirement Plan      32.42       $ 1,489,821       $ 0   
   Marathon Petroleum Excess Benefit Plan      32.42       $ 4,367,578       $ 0   
   Speedway Retirement Plan      3.71       $ 133,461       $ 0   
   Speedway Excess Benefit Plan      3.71       $ 473,839       $ 0   

R. D. Bedell

   Marathon Petroleum Retirement Plan      31.75       $ 1,261,358       $ 0   
   Marathon Petroleum Excess Benefit Plan      31.75       $ 1,808,377       $ 0   

A. R. Kenney

   Retirement Plan of Marathon Oil Company      14.25       $ 503,937       $ 0   
   Marathon Oil Company Excess Benefit Plan      14.25       $ 101,263       $ 0   
   Marathon Petroleum Retirement Plan      4.58       $ 322,793       $ 0   
   Marathon Petroleum Excess Benefit Plan      4.58       $ 2,077,070       $ 0   
   Speedway Retirement Plan      15.99       $ 437,157       $ 0   
   Speedway Excess Benefit Plan      15.99       $ 1,563,929       $ 0   

J. M. Wilder

   Marathon Petroleum Retirement Plan      31.42       $ 893,671       $ 0   
   Marathon Petroleum Excess Benefit Plan      31.42       $ 2,910,736       $ 0   

 

(1) The number of years of credited service shown in the table represents the number of years the named executive officer has participated in the plan. However, Plan Participation Service, used for the purpose of calculating each participant’s benefit under the legacy final-average-pay formula of the Marathon Retirement Plans, was frozen as of December 31, 2009.

 

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(2) The present value of accumulated benefit was calculated assuming a discount rate of 5.05 percent, a lump-sum interest rate of 2.55 percent, the RP2000 mortality table, a 96 percent lump-sum election rate, and retirement at age 62 (age 65 for the Speedway LLC Retirement Plan benefits).

Marathon Retirement Plans

In general, our employees, other than employees of Speedway LLC, who are age 21 or older and have completed one year of service are eligible to participate in the Marathon Retirement Plans. The monthly benefit under the Marathon Retirement Plans for employees, other than employees of Speedway LLC, was equal to the following formula until December 31, 2009:

[1.6% x final average pay x years of participation] – [1.33% x estimated primary social security benefit x years of participation]

This formula will be referred to as the “Marathon legacy benefit formula.” Effective January 1, 2010, the Marathon Retirement Plans were amended so that participants do not accrue additional years of participation under the Marathon legacy benefit formula. No more than 37.5 years of participation may be recognized under the Marathon legacy benefit formula. Final average pay is equal to the highest average eligible earnings for three consecutive years in the last ten years before retirement. Eligible earnings under the Marathon Retirement Plans include pay for hours worked, pay for allowed hours, military leave allowance, commissions, 401(k) contributions to the Marathon Oil Company Thrift Plan, and incentive compensation bonuses. Final average pay, vesting service and age will continue to be updated under the Marathon legacy benefit formula.

Benefit accruals for years beginning in 2010 are determined under a cash-balance formula. Under the cash-balance formula, each year plan participants receive pay credits equal to a percentage of compensation based on their plan points. Plan points equal the sum of a participant’s age and cash-balance service. Participants with less than 50 points receive a 7 percent pay credit percentage; participants with 50 to 69 points receive a 9 percent pay credit percentage; and participants with 70 or more points receive an 11 percent pay credit percentage.

Effective January 1, 2010, participants in the Marathon Retirement Plans become fully vested upon the completion of three years of vesting service. Normal retirement age for both the cash-balance and Marathon legacy benefit formulas is age 65. However, retirement-eligible participants are able to retire and receive an unreduced benefit under the Marathon legacy benefit formula after reaching age 62. The forms of benefit available under the Marathon Retirement Plans include various annuity options and lump-sum distributions.

Participants are eligible for early retirement upon reaching age 50 and completing ten years of vesting service. If an employee retires between the ages of 50 and 62, the amount of benefit under the Marathon legacy benefit formula is reduced such that if the employee retires at age 50, he or she will be entitled to 55 percent of the accrued benefits based on the single-life annuity form of benefit. There are no early retirement subsidies under the cash-balance formula. All of our named executive officers are currently eligible for early retirement benefits under the Marathon Retirement Plans.

Marathon Excess Plans

Marathon Oil also sponsors the unfunded, nonqualified Marathon Oil Company Excess Benefit Plan, and we sponsor the Marathon Petroleum Excess Benefit Plan for the benefit of a select group of management and highly compensated employees, which together are the “Marathon Excess Plans.” These plans provide benefits that participants, including our named executive officers, would have otherwise received under the tax-qualified Marathon Retirement Plans but which they did not receive because of Internal Revenue Code limitations. Eligible earnings under the Marathon Excess Plans include the items listed above for the Marathon Retirement Plans, as well as deferred compensation contributions. The Marathon Excess Plans also provide an enhancement for officers based on the three highest bonuses earned during their last ten years of employment, instead of the consecutive bonus formula in place for non-officers. Marathon Oil believes this enhancement is appropriate in

 

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light of the greater volatility of officer bonuses. Distributions under the Marathon Excess Plans are made following retirement or other separation from service in the form of a lump sum and are consistent with Section 409A of the Internal Revenue Code to the extent required.

Speedway Retirement Plan

Our Speedway LLC subsidiary sponsors the Speedway Retirement Plan.

During their prior service with Speedway LLC, Mr. Heminger and Mr. Peiffer participated in the Speedway Retirement Plan. At the time of their participation, the monthly benefit under the Speedway Retirement Plan was calculated under the following formula:

[2.0% x final average pay x years of participation] – [2.0% x estimated primary social security benefit x years of participation]

This formula will be referred to as the “Speedway legacy benefit formula.” This benefit formula was grandfathered for all employees participating in this plan as of December 31, 1998, and no additional years of participation credit are recognized under the Speedway legacy benefit formula beyond that date. No more than 25 years of participation may be recognized under the formula.

Final average pay is equal to average eligible earnings for the three years preceding retirement. Eligible earnings under the Speedway Retirement Plan include pay for hours worked, pay for allowed hours, military leave allowance, commissions, 401(k) contributions to the Speedway Retirement Savings Plan, and incentive compensation bonuses.

Effective January 1, 1999, the Speedway Retirement Plan was amended so that benefits accrued on or after that date would be determined under a pension equity formula.

As an employee of Speedway LLC, Mr. Kenney has accrued a benefit under both the Speedway legacy benefit formula and the pension equity formula. Under the pension equity benefit formula, each year a participant would be credited with a percentage of his final average pay. The percentages were based on the sum of a participant’s age plus participation service, as follows:

Age + Participation

  

Percentage of

Final Average Pay

0 – 29    2.5%
30 – 39    4.00%
40 – 49    5.25%
50 – 59    7.75%
60 – 69    10.50%
70 – 79    13.00%
80 +    15.50%

The pension equity formula generally provides that a participant’s pension equity accrued balance will equal the sum of the percentages the participant has accrued for each year of participation multiplied by his final average pay. This pension equity accrued balance is then converted into an actuarially equivalent annuity payable at normal retirement age, which was the participant’s accrued benefit under the pension equity formula. Effective January 1, 2010, the Speedway Retirement Plan was amended to provide that no additional pension equity percentage accruals would be made under the Speedway Retirement Plan.

For participants who separate from service after 2007, benefits under the Speedway Retirement Plan are fully vested upon the completion of three years of vesting service. Normal retirement age for both the pension

 

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equity and Speedway legacy benefit formulas is age 65. The forms of benefit available under the Speedway Retirement Plan include various annuity options and lump-sum distributions.

Participants are eligible for early retirement upon reaching age 50 and completing ten years of vesting service. If an employee retires between the ages of 50 and 65, the amount of benefit under the Speedway legacy benefit formula is reduced such that if the employee retires at age 50, he or she will be entitled to 55 percent of the accrued benefits based on the single-life annuity form of benefit. There are no early retirement subsidies under the pension equity formula. Mr. Heminger, Mr. Peiffer and Mr. Kenney are all currently eligible for early retirement benefits under the Speedway Retirement Plan.

Speedway Excess Plan

Our Speedway LLC subsidiary also sponsors the unfunded, nonqualified Speedway LLC Excess Benefit Plan (the “Speedway Excess Plan”) for the benefit of a select group of management and highly compensated employees. This plan provides participants, including Mr. Heminger, Mr. Peiffer and Mr. Kenney, with benefits that would have otherwise been received from the tax-qualified Speedway Retirement Plan but are prohibited by Internal Revenue Code limitations. Eligible earnings under the Speedway Excess Plan include the items listed above for the Speedway Retirement Plan, as well as deferred compensation contributions. The Speedway Excess Plan also provides an enhancement for officers based on the three highest bonuses earned during their last ten years of employment. Additionally, this plan provides an enhancement for certain highly compensated employees who are eligible for the Speedway legacy benefit formula described above. These additional benefits are based on the difference between (i) the applicable covered earnings prior to December 31, 1998 and (ii) the applicable covered earnings during the final three years of employment. Distributions under the Speedway Excess Plan are made in the form of a lump sum and are consistent with Section 409A of the Internal Revenue Code to the extent required.

Neither we nor Marathon Oil have granted extra years of service to any named executive officer for purposes of retirement benefit accruals.

 

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Nonqualified Deferred Compensation

The Nonqualified Deferred Compensation table below shows information about the nonqualified savings and deferred compensation plans sponsored by Marathon Oil and by us and our subsidiary, Speedway LLC.

 

2010 Nonqualified Deferred Compensation

 

Name

 

Plan Name

  Executive
Contributions
in Last Fiscal
Year(1) ($)
    Registrant
Contributions
in Last Fiscal
Year(2) ($)
    Aggregate
Earnings
in Last
Fiscal
Year ($)
    Aggregate
Withdrawals/
Distributions
($)
    Aggregate
Balance at
Last
Fiscal
Year End
(3) ($)
 

G. R. Heminger

  Marathon Oil Company Deferred Compensation Plan   $ 0      $ 0      $ 11,982      $ 0      $ 179,572   
  Marathon Petroleum Excess Benefit Plan   $ 0      $ 0      $ 1,250      $ 0      $ 55,300   
  Marathon Petroleum Deferred Compensation Plan   $ 0      $ 113,642      $ 194,726      $ 0      $ 1,553,108   
  EMRO Marketing Company Deferred Compensation Plan   $ 0      $ 0      $ 6,964      $ 0      $ 218,062   

G. L. Peiffer

  Marathon Oil Company Deferred Compensation Plan   $ 0      $ 0      $ 1,947      $ 0      $ 86,148   
  Marathon Petroleum Excess Benefit Plan   $ 0      $ 0      $ 1,577      $ 0      $ 69,785   
  Marathon Petroleum Deferred Compensation Plan   $ 0      $ 49,242      $ 76,193      $ 0      $ 1,130,400   
  EMRO Marketing Company Deferred Compensation Plan   $ 0      $ 0      $ 9,012      $ 0      $ 282,190   

R. D. Bedell

  Marathon Oil Company Excess Benefit Plan   $ 0      $ 0      $ 451      $ 0      $ 19,963   
  Marathon Petroleum Excess Benefit Plan   $ 0      $ 20,734      $ 3,163      $ 0      $ 153,506   

A. R. Kenney

  Marathon Petroleum Deferred Compensation Plan   $ 0      $ 0      $ 63,676      $ 0      $ 406,066   
  Speedway Deferred Compensation Plan   $ 134,923      $ 67,173      $ 151,138      $ 0      $ 1,051,699   
  EMRO Marketing Company Deferred Compensation Plan   $ 0      $ 0      $ 10,648      $ 0      $ 333,415   

J. M. Wilder

  Marathon Oil Company Deferred Compensation Plan   $ 0      $ 31,150      $ 1,627      $ 0      $ 86,957   
  Marathon Petroleum Excess Benefit Plan   $ 0      $ 0      $ 1,823      $ 0      $ 80,635   
  Marathon Petroleum Deferred Compensation Plan   $ 0      $ 0      $ 15,384      $ 0      $ 93,485   

 

(1) The amounts shown in this column are also included in the salary and bonus columns for 2010 of the Summary Compensation Table.
(2) The amounts shown are also included in the all other compensation column of the Summary Compensation Table.
(3) Of the totals in this column, the following amounts, which represent contributions attributable to 2010, are also reported in the Summary Compensation Table: Mr. Heminger, $113,642; Mr. Peiffer, $49,242; Mr. Bedell, $20,734; Mr. Kenney, $67,173; and Mr. Wilder, $31,150. Certain portions of the total for Mr. Heminger were also reported in the Summary Compensation Tables of Marathon Oil’s proxy statements in prior years.

Marathon Deferred Compensation Plans

Marathon Oil sponsors the Marathon Oil Company Deferred Compensation Plan and we sponsor the Marathon Petroleum Deferred Compensation Plan (together, the “Marathon Deferred Compensation Plans”). The Marathon Deferred Compensation Plans are unfunded, nonqualified plans in which our named executive officers, except for Mr. Kenney who is currently an employee of our Speedway LLC subsidiary, may participate. The plans were designed to provide participants the opportunity to supplement their retirement savings by deferring income in a tax-effective manner. Participants may defer up to 20 percent of their salary and bonus amounts each year. Deferral elections are made in December of each year for amounts to be earned in the following year and are irrevocable. Participants are fully vested in their deferrals under the plans.

In addition, the Marathon Deferred Compensation Plans provide benefits for participants equal to the company matching contributions they would have otherwise received under the tax-qualified Marathon Oil

 

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Company Thrift Plan but which they did not receive because of Internal Revenue Code limitations. The Marathon Oil Company Thrift Plan currently provides for company matching contributions of up to 7 percent of eligible earnings. Participants in both the Marathon Oil Company Thrift Plan and the Deferred Compensation Plans are vested in their company matching contributions upon the completion of three years of vesting service.

The investment options available under the Marathon Deferred Compensation Plans generally mirror the investment options offered to participants under the Marathon Oil Company Thrift Plan, with the exception of Marathon Oil common stock, which is not an investment option for named executive officers under the Deferred Compensation Plans. During 2010, the Deferred Compensation Plans provided that all participants would receive their benefits as a lump sum following separation from service.

Marathon Excess Plans

Certain highly compensated non-officer employees and, prior to January 1, 2006, executive officers who elected not to participate in the Marathon Deferred Compensation Plans were eligible to receive defined contribution accruals under the Marathon Excess Plans. The defined contribution formula in the Marathon Excess Plans is designed to allow eligible employees to receive company matching contributions equal to the amount they would have otherwise received under the tax-qualified Marathon Oil Company Thrift Plan but which they did not receive because of Internal Revenue Code limitations. Participants are vested in their company matching contributions upon the completion of three years of vesting service.

Defined contribution accruals in the Excess Plans are credited with interest equal to that paid in the “Marathon Stable Value Fund” option of the Marathon Oil Company Thrift Plan. The annual rate of return on this option for the year ended December 31, 2010 was 2.31 percent. During 2010, the Excess Plans provided that all distributions from the Excess Plans would be paid in the form of a lump sum following the participant’s separation from service.

As noted, our named executive officers no longer participate in the defined contribution formula of the Marathon Excess Plans, and all nonqualified company matching contributions for our named executive officers accrue under the Deferred Compensation Plans.

Speedway Deferred Compensation Plan

Mr. Kenney is eligible to participate in the Speedway Deferred Compensation Plan.

The Speedway Deferred Compensation Plan is an unfunded, nonqualified plan in which a select group of management and highly compensated employees of our Speedway LLC subsidiary, including Mr. Kenney, may participate. The plan was designed to provide participants the opportunity to save for retirement by deferring income in a tax-effective manner. Participants may defer up to 25 percent of their salary and bonus each year. Deferral elections are made in December of each year for amounts to be earned in the following year and are irrevocable. Participants are fully vested in their deferrals under the plan.

In addition, the Speedway Deferred Compensation Plan provides benefits for participants, which are intended to be approximately equal to the company matching contributions they would have otherwise received under the tax-qualified Speedway Retirement Savings Plan but which they did not receive because highly compensated employees are not permitted to defer compensation under that plan. Speedway therefore matches each participant’s deferrals under the Speedway Deferred Compensation Plan at the rate of $0.67 per dollar contributed on the first 6 percent of compensation deferred, up to a maximum of 4 percent of a participant’s eligible compensation. Participants are fully vested in these matching amounts under the plan.

The investment options available under the Speedway Deferred Compensation Plan generally mirror the investment options offered to participants under the Speedway Retirement Savings Plan. All participants in the Speedway Deferred Compensation Plan will receive their benefits as a lump sum following separation from service.

 

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EMRO Marketing Company Deferred Compensation Plan

Mr. Heminger, Mr. Peiffer and Mr. Kenney also participated in the EMRO Marketing Company Deferred Compensation Plan (the “EMRO Plan”) while working at EMRO Marketing Company (a former subsidiary of Marathon Petroleum Company). The EMRO Plan is now frozen. The employees eligible to participate in the EMRO Plan were a select group of management and highly compensated employees.

The EMRO Plan is an unfunded, nonqualified plan and was designed to provide participants the opportunity to supplement their retirement savings by deferring income in a tax-effective manner and to meet other long-term financial goals. Amounts deferred by participants under the EMRO Plan are credited with interest at the prime interest rate, adjusted quarterly, which was 3.25 percent for the quarter ended December 31, 2010. During 2010, the EMRO Plan provided that participants would receive their benefits from the EMRO Plan in a lump sum following separation from service.

Distributions from all nonqualified deferred compensation plans in which our named executive officers participate are consistent with Section 409A of the Internal Revenue Code to the extent required. As a result, distribution of amounts subject to Section 409A of the Internal Revenue Code may be delayed for six months following retirement or other separation from service where the participant is considered a “specified employee” for purposes of Section 409A.

Potential Payments upon Termination or Change-in-Control

Retirement

Marathon Oil employees are eligible for retirement once they reach age 50 and have ten or more years of vesting service with Marathon Oil. All of our named executive officers are currently retirement eligible.

Upon retirement, our named executive officers are entitled to receive their vested benefits that have accrued under Marathon Oil’s broad-based and executive benefit programs. For more information about the retirement and deferred compensation programs, see “–Pension Benefits” and “–Nonqualified Deferred Compensation.”

In addition, upon retirement, unvested stock options for our named executive officers would become immediately exercisable according to the grant terms. All outstanding stock appreciation rights were fully vested on December 31, 2010. Unvested restricted stock awards are forfeited upon retirement (except in the case of mandatory retirement at age 65). For performance units, in the case of retirement where a named executive officer has worked more than half of the performance period, awards may be vested on a prorated basis at the discretion of the Marathon Oil Compensation Committee.

Death or Disability

In the event of death or disability, our named executive officers would be entitled to the vested benefits they have accrued under Marathon Oil’s standard benefits programs. Long-term incentive awards would immediately vest in full upon the death of a named executive officer, with performance units vesting at the target level. In the event of disability, long-term incentive awards would continue to vest as if the named executive officer remained employed for up to 24 months during the period of disability.

Other Termination

No special employment or severance agreements are in place for our named executive officers, except for our Executive Change in Control Severance Benefits Plan, which is described in more detail below. Effective February 1, 2005, Marathon Oil adopted a policy stating that its board of directors should seek stockholder approval or ratification of severance agreements for senior executive officers (other than agreements consistent with Marathon Oil’s change-in-control policy adopted in 2001, which is reflected in the Executive Change in Control Severance Benefits Plan) that would require payment of cash severance benefits exceeding 2.99 times a senior executive officer’s salary plus bonus for the prior calendar year.

 

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Change-in-Control

If a change-in-control of Marathon Oil is under consideration, the Marathon Oil Compensation Committee believes named executive officers should be encouraged to continue their dedication to their assigned duties. For this reason, Marathon Oil has a plan that provides the following severance benefits if a named executive officer’s employment is terminated under certain circumstances following a change-in-control. The Marathon Oil Executive Change in Control Severance Benefits Plan provides:

 

   

a cash payment of up to three times the sum of the named executive officer’s current salary plus the highest bonus paid in the three years before the termination or change-in-control;

 

   

life and health insurance benefits for up to 36 months after termination, at the lesser of the current cost or the active employee cost;

 

   

an additional three years of service credit and three years of age credit for purposes of retiree health and life insurance benefits;

 

   

a cash payment equal to the actuarial equivalent of the difference between amounts receivable by the named executive officer under the final average pay formula in our pension plans and those which would be payable if (a) the named executive officer had an additional three years of participation service credit, (b) the named executive officer’s final average pay would be the higher of salary at the time of the change-in-control event or termination plus his or her highest annual bonus from the preceding three years, (c) for purposes of determining early retirement commencement factors, the named executive officer had three additional years of vesting service credit and three additional years of age, and (d) the named executive officer’s pension had been fully vested;

 

   

a cash payment equal to the difference between amounts receivable under Marathon Oil’s defined contribution plans and amounts which would have been received if the named executive officer’s savings had been fully vested; and

 

   

a cash payment of the amount necessary to ensure that the payments listed above are not subject to net reduction due to the imposition of federal excise taxes.

The severance benefits are payable if a named executive officer is terminated or resigns for good reason. However, benefits are not payable if the termination is for cause or due to mandatory retirement, death, disability, or resignation (other than for good reason) by the named executive officer.

If our named executive officers had actually been terminated following a change-in-control of Marathon Oil on December 31, 2010, they would receive benefits (in addition to vesting of equity-based awards and performance units, as discussed below) valued as follows:

 

Name

  

Value due to Termination Following
Change in Control(1)

Mr. Heminger

   $10,293,220

Mr. Peiffer

   $  3,423,365

Mr. Bedell

   $  5,485,368

Mr. Kenney

   $  2,998,170

Mr. Wilder

   $  3,113,787

 

(1)

Retirement benefits included in these amounts were calculated using the following assumptions: individual life expectancies using the RP2000 Combined Healthy Table weighted 75 percent male and 25 percent female; a discount rate of 2.25 percent for named executive officers who are retirement eligible (taking into account the additional three years of age and service credit) and 2.25 percent for named executive officers who are not retirement eligible; the current lump-sum interest rate for the relevant plans; and a lump-sum form of benefit. Health and welfare plans reflect the incremental cost of coverage under the policy using the assumptions used for financial reporting purposes under ASC 715. These amounts include an excise tax

 

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gross-up for Mr. Bedell for tax imposed under Sections 280G and 4999 of the Internal Revenue Code. This gross-up was calculated using the highest marginal federal individual income tax rate and assuming applicable state and/or local income tax rates.

The Marathon Oil Executive Change in Control Severance Benefits Plan continues during a potential change-in-control period and for two years after a change-in-control.

In addition, immediately upon a change-in-control or upon a named executive officer’s termination of employment during a potential change-in-control, outstanding stock options, stock appreciation rights, and restricted stock would become fully vested. If a change-in-control occurs prior to the end of a performance period, then outstanding performance units would be fully vested at the target level.

If a change-in-control of Marathon Oil had occurred on the last business day of 2010, our named executive officers, whether terminated or not, would have been entitled to receive benefits valued as follows due to the accelerated vesting of their outstanding performance unit awards and restricted stock awards:

 

Name

   Value due to Accelerated Vesting of
Long-Term Incentives
 

Mr. Heminger

   $ 7,144,749   

Mr. Peiffer

   $ 1,194,625   

Mr. Bedell

   $ 529,244   

Mr. Kenney

   $ 1,254,987   

Mr. Wilder

   $ 1,085,505   

These values were calculated using the 2010 year-end closing market price for Marathon Oil common stock of $37.03.

These values also assume that performance units awarded in 2009 and 2010 would vest and would be paid out at the target level of $1 per unit. However, these values do not include any amount for accelerated vesting of performance units awarded in 2008 for the performance period from January 1, 2008 through December 31, 2010. We have assumed that there would be no payment for performance units granted in 2008, in accordance with the terms of the performance unit award agreement, notwithstanding a change-in-control on the last business day of 2010.

The definition of a change-in-control for purposes of the Marathon Oil Executive Change in Control Severance Benefits Plan is complex but is summarized as follows. It includes any change-in-control required to be reported in response to Item 6(e) of Schedule 14A under the Exchange Act and provides that a change-in-control will have occurred if:

 

   

any person not affiliated with Marathon Oil acquires 20 percent or more of the voting power of our outstanding securities;

 

   

the Marathon Oil board of directors no longer has a majority made up of (1) individuals who were directors on the date of the agreements and (2) new directors (other than directors who join the Marathon Oil board of directors in connection with an election contest) approved by two-thirds of the directors then in office who (a) were directors on the date of the agreements or (b) were themselves previously approved by the Marathon Oil board of directors in this manner;

 

   

Marathon Oil merges with another company and, as a result, its stockholders hold less than 50 percent of the voting power of the surviving entity immediately after the transaction;

 

   

Marathon Oil stockholders approve a plan of complete liquidation of Marathon Oil; or

 

   

Marathon Oil sells all or substantially all of its assets.

 

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In addition, if any person takes certain actions that could result in a change-in-control, a potential change-in-control will have occurred. The definition of a potential change-in-control for purposes of the Marathon Oil Executive Change in Control Severance Benefits Plan is complex but, in general, a potential change-in-control would occur upon: Marathon Oil entering into an agreement which could result in a change-in-control; any person becoming the owner of 15 percent or more of its common stock; a public announcement by any person or entity stating an intention to take over Marathon Oil; or a determination by the Marathon Oil Board of Directors that a potential change-in-control has occurred.

MPC 2011 Incentive Compensation Plan

General

We expect to adopt, with the approval of our sole stockholder, the Marathon Petroleum Corporation 2011 Incentive Compensation Plan (the “2011 Plan”), which is substantially similar to the Marathon Oil 2007 Incentive Compensation Plan. The 2011 Plan is intended to reward participants by providing cash benefits and opportunities to acquire our common stock. The 2011 Plan is designed to attract and retain officers, employees and directors, to strengthen the alignment of their interests with stockholder interests, and to reward outstanding contributions to our development and financial success.

No awards will be granted under the 2011 Plan prior to the distribution date. A summary of our 2011 Plan is included below. This summary is qualified in its entirety by reference to the full text of the 2011 Plan, which is included as an exhibit to the registration statement on Form 10 of which this information statement forms a part. See “Where You Can Find More Information.” The 2011 Plan is not subject to the provisions of the Employee Retirement Income Security Act of 1974, as amended.

The 2011 Plan authorizes the granting of awards, including shares of our common stock, in any combination of the following:

 

   

stock options, including incentive stock options and nonqualified stock options;

 

   

stock appreciation rights (“SARs”);

 

   

stock awards, restricted stock awards and other awards denominated or paid in common stock;

 

   

restricted stock units (which may include dividend equivalents);

 

   

cash awards; and

 

   

performance awards.

Eligibility

Employees eligible for awards under the 2011 Plan are employees of MPC and its subsidiaries who are selected by the committee appointed by our board of directors to administer the 2011 Plan. Certain Marathon Oil employees will also receive substitute MPC stock option awards under the 2011 Plan. All of our non-employee directors are also eligible for awards under the 2011 Plan.

Authorized Shares and Limits

We have reserved a total of [            ] shares of our common stock for issuance in connection with the 2011 Plan. No more than [            ] shares may be used for awards other than stock options or SARs. The number of shares authorized to be issued under the 2011 Plan, as well as individual limits and exercise prices, are subject to adjustment for stock dividends, stock splits, recapitalizations, mergers or similar corporate events.

The following limitations apply to any awards made under the Plan:

 

   

no employee may be granted, during any calendar year, stock options or SARs that are exercisable for or relate to more than [            ] shares of common stock;

 

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no employee may be granted, during any calendar year, stock awards or restricted stock unit awards covering or relating to more than [            ] shares of common stock; and

 

   

no employee may be granted performance awards consisting of cash for any calendar year having a maximum value determined on the date of grant in excess of $20,000,000.

Potential Dilution

The maximum number of shares that may be issued under the 2011 Plan represents approximately [    ] percent of the total number of shares of our common stock expected to be outstanding as of the distribution date.

Administration of the 2011 Plan

Our board of directors will designate an independent committee to determine the types of employee awards made under the 2011 Plan and to designate the employees who are to be the recipients of the awards. The committee will administer the 2011 Plan with respect to employee awards. The committee has full and exclusive power to administer and interpret the 2011 Plan. The committee may adopt guidelines for administering the 2011 Plan as it deems necessary or proper.

Any decision of the committee in the interpretation and administration of the 2011 Plan is within its sole and absolute discretion and is final, conclusive, and binding on all parties concerned.

The committee may, in its discretion, extend or accelerate the exercisability of, accelerate the vesting of, or eliminate or make less restrictive any restrictions contained in any award, or otherwise amend or modify any award in a manner that either is not adverse to the participant or is consented to by the participant. However, no stock option or SAR will have a term greater than ten years from its grant date, and awards that are stock options or SARs may not be repriced, replaced or regranted through cancellation or modified without stockholder approval (except if in connection with a change in our capitalization or other specified corporate events) if the effect would be to reduce the underlying grant price.

With respect to director awards, our board of directors will determine the types of director awards made under the 2011 Plan, and will have the same powers, duties and authority as the committee has with respect to employee awards.

The committee and our board of directors may delegate to our chief executive officer and other senior officers their authority under the 2011 Plan. The committee, the board of directors or senior officers to whom authority has been delegated may engage third-party administrators to carry out administrative functions under the 2011 Plan.

Employee Award Terms

All awards granted to employees under the 2011 Plan are subject to the terms, conditions and limitations determined by the committee. Awards may be made in combination with, in replacement of, or as alternatives to, grants under other plans of MPC or its subsidiaries, including plans of an acquired entity.

A stock option granted to an employee under the 2011 Plan may consist of either an incentive stock option that complies with the requirements of Section 422 of the Code or a nonqualified stock option that does not comply with those requirements. Incentive stock options and nonqualified stock options must have an exercise price per share that is not less than the fair market value of the common stock on the date of grant. Subject to certain adjustment provisions of the 2011 Plan that apply only on specified corporate events, the exercise price of an option granted under the 2011 Plan may not be decreased. The term of a stock option may not extend more than ten years after the date of grant.

 

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A stock appreciation right may be granted under the 2011 Plan with respect to all or a portion of the shares of common stock subject to a stock option or may be granted separately. The exercise price of an SAR may not be less than the fair market value of the common stock on the date of grant and its term may not extend more than ten years after the date of grant.

Stock awards consist of restricted grants of common stock. Rights to dividends may be extended to and made part of any stock award at the discretion of the committee. Subject to earlier vesting upon death, disability, retirement or change-in-control, stock awards settled in stock that are not performance-based will vest over a minimum period of three years (unless the committee determines that a shorter vesting period is in the best interests of MPC), and stock awards settled in stock that are performance-based will vest over a minimum period of one year (unless the committee determines that a shorter vesting period is in the best interests of MPC).

Restricted stock unit awards consist of awards of units denominated in common stock. Rights to dividend equivalents may be extended to and made part of any restricted stock unit award at the discretion of the committee. Subject to earlier vesting upon death, disability, retirement or change-in-control, restricted stock unit awards settled in stock that are not performance-based will vest over a minimum period of three years (unless the committee determines that a shorter vesting period is in the best interests of MPC), and restricted stock unit awards settled in stock that are performance-based will vest over a minimum period of one year (unless the committee determines that a shorter vesting period is in the best interests of MPC).

Cash awards, which consist of grants denominated in cash, may also be granted to employees under the 2011 Plan.

Performance awards consist of grants made subject to the attainment of one or more performance goals and may be intended to meet the requirements of qualified performance-based compensation under Section 162(m) of the Code. The goals intended to satisfy Section 162(m) of the Code must be established by the committee prior to the earlier of:

 

   

90 days after the commencement of the period of service to which the performance goals relate, and

 

   

the lapse of 25% of the period of service.

A performance goal intended to meet the requirements of Section 162(m) of the Code may be based upon one or more business criteria that apply to the employee, one or more business units of the company, or the company as a whole, and may include any of the following: stock price measures (including, but not limited to, growth measures and total stockholder return); earnings per share (actual or targeted growth); earnings before interest, taxes, depreciation, and amortization (“EBITDA”); economic value added (“EVA”); net income measures (including, but not limited to, income after capital costs and income before or after taxes); operating income; cash flow measures; return measures (including, but not limited to, return on capital employed); operating measures (including, but not limited to, refinery throughput and mechanical availability); expense targets; margins; refined product measures; and corporate values measures (including, but not limited to, diversity commitment, ethics compliance, sustainability, environmental and safety). Prior to the payment of any performance award based on the achievement of performance goals pursuant to Section 162(m) of the Code, the committee must certify in writing that the applicable performance goals and any material terms were, in fact, satisfied.

Non-Employee Director Award Terms

We anticipate that all awards to our non-employee directors under the 2011 Plan will be subject to the terms, conditions, and limitations determined by our board of directors. Awards may be made in combination with, in replacement of, or as alternatives to, grants under other plans of MPC or its subsidiaries, including plans of an acquired entity.

All stock options granted to a director under the Plan will consist of nonqualified stock options. Nonqualified stock options must have an exercise price per share that is not less than the fair market value of the

 

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common stock on the date of grant and, subject to certain adjustment provisions of the Plan that apply only on specified corporate events, the exercise price of an option granted under the 2011 Plan may not be decreased. The term of a stock option may not extend more than ten years after the date of grant.

An SAR may be granted under the 2011 Plan with respect to all or a portion of the shares of common stock subject to a stock option or may be granted separately. The exercise price of an SAR may not be less the fair market value of the common stock on the date of grant and its term may not extend more than ten years after the date of grant.

Stock awards consist of restricted grants of common stock. Rights to dividends may be extended to and made part of any stock award at the discretion of our board of directors.

Restricted stock unit awards consist of awards of units denominated in common stock. Rights to dividend equivalents may be extended to and made part of any restricted stock unit award at the discretion of our board of directors.

Performance awards consist of grants made subject to the attainment of one or more performance goals. Our board of directors will determine the terms, conditions, limitations and performance goals with respect to performance awards to our non-employee directors.

Amendment of the Plan

The committee may amend or terminate the 2011 Plan in response to any legal requirements or for any other purpose permitted by law; provided, however, that our board of directors must approve such committee action related to non-employee director awards, no amendment that would adversely affect the rights of a participant may be made without the consent of the participant, and no amendment may be effective prior to its approval by the stockholders of MPC if approval by stockholders is legally required.

Federal Income Tax Consequences of the 2011 Plan

The following is a discussion of material U.S. federal income tax consequences to participants in the 2011 Plan, based on the law as currently in effect. This discussion is limited, and does not cover state, local, or foreign tax treatment for participants in the 2011 Plan. Differences in participants’ financial situations may cause tax consequences to vary.

Participants will not realize taxable income upon the grant of a nonqualified stock option or SAR. Upon the exercise of a nonqualified stock option, the participant will generally recognize ordinary income in an amount equal to the excess of (a) the fair market value of the stock over (b) the exercise price paid by the participant for the stock. Upon the exercise of an SAR, the participant will generally recognize ordinary income in an amount equal to the excess of (x) the fair market value of the stock underlying the SAR over (y) the grant price of the SAR. In the case of MPC employees, the ordinary income is subject to tax withholding by MPC. The participant will generally have a tax basis in any shares of common stock received pursuant to the exercise of an SAR, or pursuant to the exercise of a nonqualified stock option, that equals the fair market value of the shares on the date of exercise. Generally, we will be entitled to a deduction for U.S. federal income tax purposes that corresponds as to timing and amount with the compensation income recognized by the MPC employee or director.

Incentive stock options can only be granted to employees. An employee will not have taxable income upon the grant of an incentive stock option. Upon the exercise of an incentive stock option, the employee will not have taxable income, although the excess of the fair market value of the shares of common stock received upon exercise of the incentive stock option over the exercise price will increase the alternative minimum taxable income of the employee, which may cause the employee to incur alternative minimum tax. The payment of any alternative minimum tax due to the exercise of an incentive stock option may be allowed as a credit against the employee’s regular tax liability in a later year.

 

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Upon the disposition of stock received upon exercise of an incentive stock option that has been held for the requisite holding period (generally one year from the date of exercise and two years from the date of grant), the employee will generally recognize capital gain or loss equal to the difference between the amount received in the disposition and the exercise price paid. However, if an employee disposes of stock that has not been held for the requisite holding period, the employee will recognize ordinary income in the year of the disqualifying disposition to the extent that the fair market value of the stock at the time of exercise of the incentive stock option, or, if less, the amount realized in the case of an arm’s-length disqualifying disposition to an unrelated party, exceeds the exercise price paid by the employee for the stock. The employee will also recognize capital gain, or, depending on the holding period, additional ordinary income, to the extent the amount realized in the disqualifying disposition exceeds the fair market value of the stock on the exercise date. If the exercise price paid for the stock exceeds the amount realized in the disqualifying disposition, in the case of an arm’s-length disposition to an unrelated party, the excess would ordinarily be a capital loss.

We are generally not entitled to any federal income tax deduction upon the grant or exercise of an incentive stock option, unless the employee makes a disqualifying disposition of the stock. If an employee makes a disqualifying disposition, we will generally be entitled to a tax deduction that corresponds as to timing and amount with the compensation income recognized by the employee.

An employee will recognize ordinary income upon receipt of cash pursuant to a cash award or performance award or, if earlier, at the time the cash is otherwise made available for the employee to draw upon it.

A participant will not have taxable income upon the grant of a stock award in the form of units denominated in common stock, but rather will generally recognize ordinary income at the time the participant receives common stock or cash in satisfaction of a stock unit award in an amount equal to the fair market value of the common stock or cash received. In general, a participant will recognize ordinary income as a result of the receipt of common stock pursuant to a stock award or performance award in an amount equal to the fair market value of the common stock when the stock is received; provided, however, that if the stock is not transferable and is subject to a substantial risk of forfeiture when received, the participant will recognize ordinary income in an amount equal to the fair market value of the common stock when it first becomes transferable or is no longer subject to a substantial risk of forfeiture, unless the participant makes an election to be taxed on the fair market value of the common stock when the stock is received.

An employee will be subject to tax withholding for federal, and generally for state and local, income taxes at the time the employee recognizes income with respect to common stock or cash received pursuant to a cash award, performance award, stock award or stock unit award. Dividends that are received by a participant prior to the time that the common stock is taxed to the participant are taxed as additional compensation, not as dividend income. A participant’s tax basis in the common stock received will equal the amount recognized by the participant as income, and the participant’s holding period in the shares will commence on the date income is recognized.

We intend to make awards under the 2011 Plan that are either not subject to Section 409A of the Code or that comply with the requirements of Section 409A of the Code.

Awards Under the Plan

All other awards under the 2011 Plan will be granted at the discretion of the board of directors or the committee (or their delegate), as appropriate. Therefore, the total benefits that will be received by any particular person or group under the 2011 Plan are not determinable at this time.

 

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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table sets forth information with respect to the anticipated beneficial ownership of our common stock by:

 

   

each stockholder who is expected following the spin-off to beneficially own more than 5% of our common stock;

 

   

each executive officer named in the Summary Compensation Table;

 

   

each person expected to serve on our board of directors as of the distribution date; and

 

   

all of our executive officers and directors as a group.

We have based the percentage of class amounts set forth below on each indicated person’s beneficial ownership of Marathon Oil common stock as of March 10, 2010, unless we indicate some other basis for the share amounts, and based on the distribution of one share of our common stock for every two shares of Marathon Oil common stock outstanding. To the extent our directors and executive officers own shares of Marathon Oil common stock at the time of the spin-off, they will participate in the distribution of shares of common stock in the spin-off on the same terms as other holders of Marathon Oil common stock. Following the spin-off, we will have an aggregate of approximately [            ] million shares of common stock outstanding, based on approximately [            ] million shares of Marathon Oil common stock outstanding on [            ] , 2010. The number of shares beneficially owned by each stockholder, director or officer is determined according to the rules of the SEC and the information is not necessarily indicative of beneficial ownership for any other purpose. The mailing address for each of the directors and executive officers is c/o Marathon Petroleum Corporation, 539 South Main Street, Findlay, Ohio 45840-3229.

 

     Shares of Common Stock
to be Beneficially Owned
 

Name of Beneficial Owner

   Number      Percent  

Blackrock, Inc.

     26,217,994         7.39 %(1) 

FMR LLC

     19,520,112         5.499 %(2) 

Mr. David A. Daberko

     21,710         *   

Mr. William L. Davis

     20,687         *   

Mr. Charles Lee

     29,743         *   

Mr. Seth Schofield

     29,741         *   

Mr. John W. Snow

     10,405         *   

Mr. Thomas J. Usher

     18,656         *   

Mr. Gary R. Heminger

     344,224         *   

Mr. Garry L. Peiffer

        *   

Mr. Richard D. Bedell

        *   

Mr. Anthony R. Kenney

        *   

Mr. J. Michael Wilder

        *   

All executive officers and directors as a group ([    ] persons)

  

     *   

 

(1)

Based on the Schedule 13G/A dated January 21, 2011 (filed: February 7, 2011) which indicates that it was filed by Blackrock, Inc., According to such Schedule 13G, Blackrock, Inc., through itself and being the parent holding company or control person over each of the following subsidiaries: Blackrock Japan Co., Ltd., Blackrock Advisors (UK) Limited, Blackrock Institutional Trust Company, N.A., Blackrock Fund Advisors, Blackrock Asset Management Canada Limited, Blackrock Asset Management Australia Limited, Blackrock Advisors, LLC, Blackrock Capital Management, Inc., Blackrock Financial Management, Inc., Blackrock Investment Management, LLC, Blackrock Investment Management (Australia) Limited, Blackrock (Luxembourg) S.A., Blackrock (Netherlands) B.V., Blackrock Fund Managers Limited, Blackrock Pensions Limited, Blackrock Asset Management Ireland Limited, Blackrock International

 

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Limited, Blackrock Investment Management (UK) Limited, and State Street Research & Management Company, each individually owning less than 5% is deemed to beneficially own 52,435,989 shares of Marathon Oil common stock, and has sole voting power over 52,435,989 shares, shared voting power over no shares, sole dispositive power over 52,435,989 shares, and shared dispositive power over no shares.

(2) Based on the Schedule 13G/A dated February 11, 2011 (filed: February 14, 2011) which indicates that it was filed jointly by FMR LLC (“FMR”) and Edward C. Johnson 3d, Chairman of FMR. According to the Schedule 13G, (i) Fidelity Management & Research Company (“Fidelity”), a wholly owned subsidiary of FMR, is an investment adviser and the beneficial owner of 34,538,068 shares of Marathon Oil common stock or 4.865% and that Edward C. Johnson 3d and FMR, through its control of Fidelity, and the funds each has sole dispositive power over 34,538,068 shares of Marathon Oil common stock owned by the funds, shared dispositive power over no shares, and that neither FMR or Edward C. Johnson 3d has sole or shared voting power to vote or direct the voting of the shares owned directly by the funds, which power resides with the funds Board of Trustees. Fidelity carries out the voting of the shares under written guidelines established by the funds’ Board of Trustees; (ii) Strategic Advisers, Inc., is a wholly owned subsidiary of FMR and an investment adviser is deemed to beneficially own 17,834 shares of Marathon Oil common stock or .003%; (iii) Pyramis Global Advisors, LLC (“PGALLC”), an indirect wholly owned subsidiary of FMR and an investment adviser is deemed to beneficially own 470,280 shares of Marathon Oil common stock or .066%, and that Edward C. Johnson 3d and FMR, through its control of PGALLC, each has sole voting power or the power to direct the voting over 470,280 shares of Marathon Oil common stock, and each has sole dispositive power over 470,280 shares owned by the institutional accounts or funds advised by PGALLC; and (iv) Pyramis Global Advisors Trust Company (“PGATC”), an indirect wholly owned subsidiary of FMR and a bank is deemed to beneficially own 729,270 shares of Marathon Oil common stock or .103%, as a result of its serving as investment manager of institutional accounts owning such shares, and that Edward C. Johnson 3d and FMR, through its control of PGATC, each has sole voting power or the power to direct the voting over 686,060 shares of Marathon Oil common stock, and each has sole dispositive power over 729,270 shares owned by the institutional accounts managed by PGATC. FIL Limited (“FIL”) and various foreign-based subsidiaries provide investment advisory services to a number of non-U.S. investment companies and certain institutional investors. FIL is deemed to beneficially own 3,284,772 shares of Marathon Oil common stock or .463%, has sole voting power or the power to direct the voting of 3,034,412 shares and no voting power over 250,360 shares held by the international funds, and dispositive power over 3,284,772 shares owned by the international funds. Partnerships controlled predominately by members of the family of Edward C. Johnson 3d, Chairman of FMR and FIL, or trusts for their benefit, own shares of FIL voting stock with the right to cast approximately 39% of the total votes which may be cast by all holders of FIL voting stock. FMR and FIL are separate and independent corporate entities, and their boards of directors are generally composed of different individuals. FMR and FIL are of the view that they are not acting as a “group” for purposes of Section 13(d) under the Exchange Act and that they are not otherwise required to attribute to each other the “beneficial ownership” of securities “beneficially owned” by the other corporation within the meaning of Rule 13d-3 of the Exchange Act.
* The percentage of shares beneficially owned by each director or executive officer does not exceed one percent of the common shares outstanding.

 

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DESCRIPTION OF CAPITAL STOCK

Introduction

In the discussion that follows, we have summarized the material provisions of our certificate of incorporation and by-laws relating to our capital stock. This discussion is subject to the relevant provisions of Delaware law and is qualified in its entirety by reference to: (1) our restated certificate of incorporation, which we refer to in this Form 10 as our “certificate of incorporation”; and (2) our amended and restated by-laws, which we refer to in this Form 10 as our “by-laws.” You should read the provisions of our certificate of incorporation and by-laws as currently in effect for more details regarding the provisions described below and for other provisions that may be important to you. We have filed copies of those documents with the SEC, and they are incorporated by reference as exhibits to the registration statement on Form 10 of which this information statement forms a part. See “Where You Can Find More Information.”

Authorized Capital Stock

Our authorized capital stock consists of:

 

   

1 billion shares of common stock; and

 

   

30 million shares of preferred stock, issuable in series.

Each authorized share of common stock has a par value of $0.01. The authorized shares of preferred stock have par value of $0.01 per share. Immediately following the spin-off, we expect that approximately 355 million shares of our common stock will be outstanding, based on the distribution of one share of our common stock for every two shares of Marathon Oil common stock outstanding and the anticipated number of shares of Marathon Oil common stock outstanding as of the record date. The actual number of shares of our common stock to be distributed will be determined based on the number of shares of Marathon Oil common stock outstanding as of the record date. Immediately following the spin-off, no shares of our preferred stock will be issued and outstanding.

Common Stock

Each share of our common stock entitles its holder to one vote in the election of each director and on all other matters voted on generally by our stockholders. No share of our common stock affords any cumulative voting rights. This means that the holders of a majority of the voting power of the shares voting for the election of directors can elect all directors to be elected if they choose to do so. Our board of directors may grant holders of preferred stock, in the resolutions creating the series of preferred stock, the right to vote on the election of directors or any questions affecting our company.

Holders of our common stock will be entitled to dividends in such amounts and at such times as our board of directors in its discretion may declare out of funds legally available for the payment of dividends. Dividends on our common stock will be paid at the discretion of our board of directors after taking into account various factors, including:

 

   

our financial condition and performance;

 

   

our cash needs and capital investment plans;

 

   

our obligations to holders of any preferred stock we may issue;

 

   

income tax consequences; and

 

   

the restrictions Delaware and other applicable laws then impose.

In addition, the terms of the loan agreements, indentures and other agreements we enter into from time to time may contain covenants or other provisions that could limit our ability to pay, or otherwise restrict the

 

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payment of, cash dividends. For discussions of the covenants contained in our Credit Agreement and our Indenture, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources.”

If we liquidate or dissolve our business, the holders of our common stock will share ratably in all our assets that are available for distribution to our stockholders after our creditors are paid in full and the holders of all series of our outstanding preferred stock, if any, receive their liquidation preferences in full.

Our common stock has no preemptive rights and is not convertible or redeemable or entitled to the benefits of any sinking or repurchase fund. All shares of common stock to be distributed in connection with the spin-off will be fully paid and nonassessable.

We have applied to have our shares of the common stock listed on the New York Stock Exchange under the symbol “MPC.”

The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.

Preferred Stock

At the direction of our board of directors, without any action by the holders of our common stock, we may issue one or more series of preferred stock from time to time. Our board of directors can determine the number of shares of each series of preferred stock and the designation, powers, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions applicable to any of those rights, including dividend rights, voting rights, conversion or exchange rights, terms of redemption and liquidation preferences, of each series.

We believe that the ability of our board of directors to issue one or more series of our preferred stock will provide us with flexibility in structuring possible future financings and acquisitions, and in meeting other corporate needs that might arise. The authorized shares of our preferred stock, as well as shares of our common stock, will be available for issuance without further action by our stockholders, unless such action is required by applicable law or the rules of any stock exchange on which our securities may be listed or traded. If the approval of our stockholders is not required for the issuance of shares of our preferred stock or our common stock our board may determine not to seek stockholder approval.

The existence of undesignated preferred stock may enable our board of directors to render more difficult or to discourage an attempt to obtain control of our company by means of a tender offer, proxy contest, merger or otherwise, and thereby to protect the continuity of our management. The terms of one or more classes or series of preferred stock could dilute the voting power or reduce the value of our common stock. For example, we could grant holders of preferred stock the right to elect some number of our directors in all events or on the happening of specified events or the right to veto specified transactions. Similarly, the repurchase or redemption rights or liquidation preferences we could assign to holders of preferred stock could affect the residual value of the common stock. As a result, the issuance of shares of preferred stock, or the issuance of rights to purchase shares of preferred stock, may discourage an unsolicited acquisition proposal or may materially and adversely affect the market price of our common stock or any existing preferred stock.

Restrictions on Stock Ownership by Non-U.S. Citizens

We are subject to a variety of U.S. federal statutes and regulations, including the Shipping Act of 1916, as amended, and the Merchant Marine Act of 1920, as amended, that govern the ownership and operation of vessels used to carry cargo between U.S. ports (collectively the “Maritime Laws.”)

 

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To ensure that ownership by non-U.S. citizens of our stock will not exceed the 25% maximum permitted by the Maritime Laws, our certificate of incorporation limits the aggregate percentage ownership by non-U.S. citizens of our stock to 23% of the outstanding shares. We may prohibit transfers that would cause ownership of our stock by non-U.S. citizens to exceed 23%. Our certificate of incorporation authorizes us to effect any and all measures necessary or desirable to monitor and limit foreign ownership of our stock.

If, despite such measures, the number of shares of our stock that are owned by non-U.S. citizens exceeds 23%, we may suspend the voting, dividend and other distribution rights of the shares owned by non-U.S. citizens in excess of 23%. The determination of which shares will be deemed in excess of the 23% limitation will be made by reference to the dates the shares were acquired by non-U.S. citizens. Our determination of which shares are deemed to be in excess will be conclusive. We will have the power but are under no obligation to redeem any such excess shares at a redemption price per share equal to the fair market value of the shares on the date we call for redemption plus any dividend or other distribution declared with respect to such shares prior to the date we call for redemption and remaining unpaid.

Restrictions on Citizenship of Directors, Chairman and CEO

Our certificate of incorporation also limits the number of our directors that are non-U.S. citizens to no more than the minority necessary to constitute a quorum of directors for a meeting and requires our chairman and CEO to be U.S. Citizens.

Limitation on Directors’ Liability

Delaware law authorizes Delaware corporations to limit or eliminate the personal liability of their directors to them and their stockholders for monetary damages for breach of a director’s fiduciary duty of care. The duty of care requires that, when acting on behalf of the corporation, directors must exercise an informed business judgment based on all material information reasonably available to them. Absent the limitations Delaware law authorizes, directors of Delaware corporations are accountable to those corporations and their stockholders for monetary damages for conduct constituting gross negligence in the exercise of their duty of care. Delaware law enables Delaware corporations to limit available relief to equitable remedies such as injunction or rescission. Our certificate of incorporation limits the liability of the members of our board of directors by providing that no director will be personally liable to us or our stockholders for monetary damages for any breach of the director’s fiduciary duty as a director, except for liability:

 

   

for any breach of the director’s duty of loyalty to us or our stockholders;

 

   

for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

 

   

for unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; and

 

   

for any transaction from which the director derived an improper personal benefit.

This provision could have the effect of reducing the likelihood of derivative litigation against our directors and may discourage or deter our stockholders or management from bringing a lawsuit against our directors for breach of their duty of care, even though such an action, if successful, might otherwise have benefited us and our stockholders. Our by-laws provide indemnification to our officers and directors and other specified persons with respect to their conduct in various capacities. See “Indemnification of Directors and Officers.”

Statutory Business Combination Provision

As a Delaware corporation, we are subject to Section 203 of the Delaware General Corporation Law. In general, Section 203 prevents an “interested stockholder,” which is defined generally as a person owning 15% or

 

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more of a Delaware corporation’s outstanding voting stock or any affiliate or associate of that person, from engaging in a broad range of “business combinations” with the corporation for three years following the date that person became an interested stockholder unless:

 

   

before that person became an interested stockholder, the board of directors of the corporation approved the transaction in which that person became an interested stockholder or approved the business combination;

 

   

on completion of the transaction that resulted in that person’s becoming an interested stockholder, that person owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, other than stock held by (1) directors who are also officers of the corporation or (2) any employee stock plan that does not provide employees with the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or

 

   

following the transaction in which that person became an interested stockholder, both the board of directors of the corporation and the holders of at least two-thirds of the outstanding voting stock of the corporation not owned by that person approve the business combination.

Under Section 203, the restrictions described above also do not apply to specific business combinations proposed by an interested stockholder following the announcement or notification of designated extraordinary transactions involving the corporation and a person who had not been an interested stockholder during the previous three years or who became an interested stockholder with the approval of a majority of the corporation’s directors, if a majority of the directors who were directors prior to any person’s becoming an interested stockholder during the previous three years, or were recommended for election or elected to succeed those directors by a majority of those directors, approve or do not oppose that extraordinary transaction.

Anti-Takeover Effects of Provisions of our Certificate of Incorporation and By-laws

Some of the provisions of our certificate of incorporation and by-laws discussed below may have the effect, either alone or in combination with the provisions of our certificate of incorporation discussed above and Section 203 of the Delaware General Corporation Law, of making more difficult or discouraging a tender offer, proxy contest, merger or other takeover attempt that our board of directors opposes but that a stockholder might consider to be in its best interest.

Our certificate of incorporation provides that our stockholders may act only at an annual or special meeting of stockholders and may not act by written consent. Our certificate of incorporation and by-laws provide that only a majority of our board of directors, the chairman of our board of directors or our chief executive officer may call a special meeting of our stockholders.

Our certificate of incorporation provides for a classified board of directors. Except for directors that our preferred stockholders may elect, our board of directors is divided into three classes, with the directors of each class as nearly equal in number as possible. At each annual meeting of our stockholders, the term of a different class of our directors will expire. As a result, we contemplate that our stockholders will elect approximately one-third of our board of directors each year. Our board of directors believes that a classified board structure facilitates continuity and stability of leadership and policy by helping ensure that, at any given time, a majority of our directors will have prior experience as directors of our company and will be familiar with its business and operations. This will, in the view of our board of directors, permit more effective long-term planning and help create long-term value for our stockholders. Board classification could, however, prevent a party who acquires control of a majority of our outstanding voting stock from obtaining control of our board of directors until the second annual stockholders’ meeting following the date that party obtains that control. This system of electing and removing directors may discourage a third party from making a tender offer or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders to replace a majority of the directors.

 

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Our certificate of incorporation provides that the number of directors will be fixed exclusively by, and may be increased or decreased exclusively by, our board of directors from time to time, but will not be less than three. Our certificate of incorporation and by-laws provide that directors may be removed only with cause (as such term is defined in our certificate of incorporation) as determined by the Delaware Chancery Court, or by a vote of at least 80% of the voting power of our outstanding voting stock. A vacancy on our board of directors may be filled by a vote of a majority of the directors in office, and a director appointed to fill a vacancy serves for the remainder of the term of the class of directors in which the vacancy occurred. These provisions will prevent our stockholders from removing incumbent directors without cause and filling the resulting vacancies with their own nominees.

Our by-laws contain advance-notice and other procedural requirements that apply to stockholder nominations of persons for election to our board of directors at any annual meeting of stockholders and to stockholder proposals that stockholders take any other action at any annual meeting. In the case of any annual meeting, a stockholder proposing to nominate a person for election to our board of directors or proposing that any other action be taken must give our corporate secretary written notice of the proposal not less than 90 days and not more than 120 days before the first anniversary of the date of the immediately preceding year’s annual meeting of stockholders. These stockholder proposal deadlines are subject to exceptions if the pending annual meeting date is more than 30 days prior to or more than 30 days after the first anniversary of the immediately preceding year’s annual meeting. If our chief executive officer, the chairman of our board of directors or a majority of our board of directors calls a special meeting of stockholders for the election of directors, a stockholder proposing to nominate a person for that election must give our corporate secretary written notice of the proposal not earlier than 120 days prior to that special meeting and not later than the last to occur of (1) 90 days prior to that special meeting or (2) the 10th day following the day we publicly disclose the date of the special meeting. Our by-laws prescribe specific information that any such stockholder notice must contain. These advance-notice provisions may have the effect of precluding a contest for the election of our directors or the consideration of stockholder proposals if the proper procedures are not followed, and of discouraging or deterring a third party from conducting a solicitation of proxies to elect its own slate of directors or to approve its own proposal, without regard to whether consideration of those nominees or proposals might be harmful or beneficial to us and our stockholders.

Our certificate of incorporation and by-laws provide that our stockholders may adopt, amend and repeal our by-laws at any regular or special meeting of stockholders by a vote of at least 80% of the voting power of our outstanding voting stock, provided the notice of intention to adopt, amend or repeal the by-laws has been included in the notice of that meeting. Our certificate of incorporation and by-laws also confer on our board of directors the power to adopt, amend or repeal our by-laws with the affirmative vote of a majority of the directors then in office.

Our certificate of incorporation provides that a vote of at least 80% of the voting power of our outstanding voting stock at any regular or special meeting of the stockholders is required to adopt, amend or repeal certain provisions of our certificate of incorporation.

As discussed above under “—Preferred Stock,” our certificate of incorporation authorizes our board of directors, without the approval of our stockholders, to provide for the issuance of all or any shares of our preferred stock in one or more series and to determine the designation, powers, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions applicable to any of those rights, including dividend rights, voting rights, conversion or exchange rights, terms of redemption and liquidation preferences, of each series. The issuance of shares of our preferred stock, or the issuance of rights to purchase shares of preferred stock, could be used to discourage an unsolicited acquisition proposal. In addition, under some circumstances, the issuance of preferred stock could adversely affect the voting power of our common stockholders.

In addition to the purposes described above, these provisions of our certificate of incorporation and by-laws are also intended to increase the bargaining leverage of our board of directors, on behalf of our stockholders, in any

 

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future negotiations concerning a potential change of control of our company. Our board of directors has observed that certain tactics that bidders employ in making unsolicited bids for control of a corporation, including hostile tender offers and proxy contests, have become relatively common in modern takeover practice. Our board of directors considers those tactics to be highly disruptive to a corporation and often contrary to the overall best interests of its stockholders. In particular, bidders may use these tactics in conjunction with an attempt to acquire a corporation at an unfairly low price. In some cases, a bidder will make an offer for less than all the outstanding capital stock of the target company, potentially leaving stockholders with the alternatives of partially liquidating their investment at a time that may be disadvantageous to them or retaining an investment in the target company under substantially different management with objectives that may not be the same as the new controlling stockholder. The concentration of control in our company that could result from such an offer could deprive our remaining stockholders of the benefits of listing on the New York Stock Exchange and public reporting under the Exchange Act.

While our board of directors does not intend to foreclose or discourage reasonable merger or acquisition proposals, it believes that value for our stockholders can be enhanced by encouraging would-be acquirers to forego hostile or coercive tender offers and negotiate with the board of directors terms that are fair to all stockholders. Our board of directors believes that the provisions described above will (1) discourage disruptive tactics and takeover attempts at unfair prices or on terms that do not provide all stockholders with the opportunity to sell their stock at a fair price and (2) encourage third parties who may seek to acquire control of our company to initiate such an acquisition through negotiations directly with our board of directors. Our board of directors also believes these provisions will help give it the time necessary to evaluate unsolicited offers, as well as appropriate alternatives, in a manner that assures fair treatment of our stockholders. Our board of directors recognizes that a takeover might in some circumstances be beneficial to some or all of our stockholders, but, nevertheless, believes that the benefits of seeking to protect its ability to negotiate with the proponent of an unfriendly or unsolicited proposal to take over or restructure our company outweigh the disadvantages of discouraging those proposals.

Transfer Agent and Registrar

Computershare Trust Company, N.A. is the transfer agent and registrar for our common stock. Our stockholders can contact the transfer agent and registrar at:

Computershare Trust Company, N.A.

250 Royall Street

Canton, Massachusetts 02021-1011

Telephone: (888) 843-5542 or

(781) 575-4735 (outside the United States, Canada and Puerto Rico)

 

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INDEMNIFICATION OF DIRECTORS AND OFFICERS

Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses including attorneys’ fees, judgments, fines and amounts paid in settlement in connection with various actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation, such as a derivative action), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if they had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of any actions by or in the right of the corporation, except that indemnification only extends to expenses, including attorneys’ fees, incurred in connection with the defense or settlement of such actions, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s certificate of incorporation, by-laws, agreement, a vote of stockholders or disinterested directors or otherwise.

Our by-laws provide that we will indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person or a person for whom such person is the legal representative, is or was a director or officer of us or, while a director or officer of us, is or was serving at our request as a director, officer, manager, partner, member, member representative or other designated legal representative of another corporation or of a partnership, joint venture, limited liability company, trust or other enterprise, including service with respect to employee benefit plans, against all liability and losses suffered and expenses (including attorneys’ fees) incurred by such person in connection with such action, suit or proceeding. Our by-laws also provide that we will pay the expenses incurred by a director or officer in defending any such proceeding in advance of its final disposition, subject to such person providing us with specified undertakings. Notwithstanding the foregoing, our by-laws provide that we shall be required to indemnify or make advances to a person in connection with a proceeding (or part thereof) initiated by such person only if the proceeding (or part thereof) was authorized by our board of directors. These rights are not exclusive of any other right that any person may have or may acquire under any statute, provision of our certificate of incorporation, by-laws, agreement, vote of stockholders or disinterested directors or otherwise. No amendment, modification or repeal of those provisions will in any way adversely affect any right or protection under those provisions of any person in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

Our by-laws also permit us to secure and maintain insurance on behalf of any of our directors, officers, employees or agents and each person who is, or was, serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust or other enterprise for any liability asserted against and incurred by such person in any such capacity. We intend to obtain directors’ and officers’ liability insurance providing coverage to our directors and officers.

 

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INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The combined financial statements of the Refining, Marketing and Transportation Business of Marathon Oil Corporation as of December 31, 2010 and 2009 and for each of the three years in the period ended December 31, 2010 included in this information statement have been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, as stated in their report appearing herein.

WHERE YOU CAN FIND MORE INFORMATION

We have filed with the SEC a registration statement on Form 10 under the Exchange Act relating to the common stock being distributed in the spin-off. This information statement forms a part of that registration statement but does not contain all of the information set forth in the registration statement and the exhibits and schedules to the registration statement. For further information relating to us and the shares of our common stock, reference is made to the registration statement, including its exhibits and schedules. Statements made in this information statement relating to any contract or other document are not necessarily complete and you should refer to the exhibits attached to the registration statement for copies of the actual contract or document. You may review a copy of the registration statement, including its exhibits and schedules, at the SEC’s Public Reference Room, located at 100 F Street, NE, Washington, D.C. 20549 or on the SEC’s Web site at http://www.sec.gov . You may obtain a copy of the registration statement from the SEC’s Public Reference Room upon payment of prescribed fees. Please call the SEC at (800) SEC-0330 for further information on the operation of the Public Reference Room.

As a result of the spin-off, we will become subject to the information and reporting requirements of the Exchange Act and, in accordance with the Exchange Act, we will file periodic reports, proxy statements and other information with the SEC. Those periodic reports, proxy statements and other information will be available for inspection and copying at the SEC’s Public Reference Room and the SEC’s Web site at http://www.sec.gov .

We intend to furnish holders of our common stock with annual reports containing financial statements prepared in accordance with U.S. generally accepted accounting principles and audited and reported on, with an opinion expressed, by an independent registered public accounting firm.

We plan to make available free of charge on our Web site, our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports as soon as reasonably practicable after we electronically file or furnish such materials to the SEC. All of these documents will be made available free of charge on our Web site, www.MarathonPetroleum.com , and will be provided free of charge to any stockholders requesting a copy by writing to: Marathon Petroleum Corporation, 539 South Main Street, Findlay, Ohio 45840-3229, Attention: Corporate Secretary.

The information on our Web site is not, and shall not be deemed to be, a part of this information statement or incorporated into any other filings we make with the SEC.

No person is authorized to give any information or to make any representations with respect to the matters described in this information statement other than those contained in this information statement or in the documents incorporated by reference in this information statement and, if given or made, such information or representation must not be relied upon as having been authorized by us or Marathon Oil. Neither the delivery of this information statement nor consummation of the spin-off shall, under any circumstances, create any implication that there has been no change in our affairs or those of Marathon Oil since the date of this information statement, or that the information in this information statement is correct as of any time after its date.

 

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GLOSSARY OF SELECTED TERMS

The following are definitions of some of the terms we use to describe our business in this information statement.

Aliphatic Hydrocarbons —A group of hydrocarbons primarily consumed in the oil-based paint, coating, ink and adhesive industries. Aliphatics are also used for industrial cleaning, dry cleaning, aerosol formulations, lighter fluids and household products.

Anode Grade Coke —Grade of petroleum coke (as defined below) low in metals such as vanadium, nickel and iron.

Aromatics —A group of hydrocarbons derived chiefly from petroleum and coal tar that are used in producing a wide range of consumer products.

Bitumen —A name for various solid and semisolid crude oils.

Blendstocks or blend stocks —Various hydrocarbon streams produced from crude oil, natural gas processing, partially refined products and additives, which when blended together produce finished gasoline and diesel fuel. These blends may include natural gasoline, fuel ethanol, reformed gasoline or butane, among others.

Charge stocks —Various hydrocarbon streams produced from crude oil, natural gas processing, partially refined products and additives, which when processed in refinery units produce finished refined products. Charge stocks include gas oil. See the definition of Feedstocks below.

Coke —A solid material and a by-product of the cracking process. Cokes produced from sour crude oil are high in sulfur and trace metals and are used in fuel applications such as utility boilers. Cokes produced from sweet crude are low in sulfur and are used in applications such as aluminum smelting.

Coking —A refining process for thermally converting and upgrading heavy residual into lighter products and petroleum coke.

Cumene —A colorless, flammable, aromatic hydrocarbon liquid that is processed into other important chemicals, such as phenol and acetone.

Dealer —A business person or entity that operates one or more retail gasoline outlets affiliated with a brand identity.

Diluent —A lighter medium such as synthetic crude oil or natural gas condensates that is use to dilute bitumen to create a heavy crude oil blend that can be transported in pipelines.

Distillates —Liquid hydrocarbons recovered from wet gas by a separator that condenses the liquid out of the gas.

Ethanol —Flammable liquid obtained by fermentation of corn or other starchy or sugary plant materials, used primarily as fuel for vehicles. When denatured with gasoline for fuel blending, ethanol may be referred to as fuel ethanol.

Feedstocks —Hydrocarbon compounds such as gas oil and natural gas that are processed and/or blended to produce an end product.

Fluid Catalytic Cracking —The refining process under which heavy molecular weight hydrocarbons are broken up into light hydrocarbon molecules through the use of a catalytic agent to increase the yield of gasoline from crude oil. Fluid catalytic cracking uses a catalyst in the form of very fine particles, which behave as a fluid when aerated with a vapor.

 

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Gathering Line —A pipeline that transports oil or gas from a central point of production to a transmission line or mainline.

Heavy Crude Oil —Crude oil with an American Petroleum Institute gravity of 24 degrees or less. Heavy crude oil is generally sold at a discount to lighter crude oils.

Heavy Fuel Oil —A product of crude oil with a complex mixture of high molecular weight hydrocarbons produced from high temperature treatment of heavy petroleum fractions primarily used in the utility and ship bunkering industries.

Independent Retailer —A business person who operates multiple retail motor fuel outlets.

Jobber —A business person or entity that does not carry out refining operations but purchases refined products and resells them to other jobbers, dealers or other gas station or convenience store customers. Jobbers often supply retail outlets which they own or operate.

Mbpd —Thousand barrels per day.

Mmbpd —Million barrels per day.

Naphtha —A by-product of crude oil refining which is used as a gasoline blending and/or feedstock component.

Petroleum Pitch —A residue from heat treatment and distillation of petroleum fractions. Petroleum pitch is used in the manufacture of carbon products like graphite electrodes, carbon anodes, sealers and coatings, driveway sealers, carbon/carbon composite products and carbon fibers. It is also used as a binder for other industries such as refractory applications, building materials and clay pigeons used for target shooting.

Propylene —A chemical substance derived mainly as a co-product with ethylene through the cracking process of gas oil or naphtha and used primarily in the manufacture of plastics.

Slack Wax —An unrefined mixture of high-melting hydrocarbons obtained from a solvent dewaxing process from high boiling distillates or residual oils.

Slurry —A heavy oil produced in the catalytic cracking process. Slurry oil is normally sold as a heavy industrial fuel or recycled back into the oil refining process to make other refined products such as diesel.

Sour Crude Oil —A crude oil that is relatively high in sulfur content, which requires additional processing to remove the sulfur.

Sweet Crude Oil —A crude oil that is relatively low in sulfur content.

Throughput —The actual quantity of crude oil and other product processed at a unit or refinery, typically expressed in barrels per day.

Throughput Capacity —The potential or design capacity of crude oil that can be processed through a unit or a refinery, typically expressed in barrels per day.

Toluene —A colorless, flammable, hydrocarbon liquid that is primarily used in paints and coatings, printing inks, adhesives and flexible foams. Toluene is also widely used as a gasoline blendstock to increase octane.

Vacuum Distillation —Distillation under reduced pressure which lowers the boiling temperature of crude oils in order to distill crude oil components that have high boiling points.

Xylene —A colorless, flammable, hydrocarbon liquid that is primarily sold as an intermediate chemical feedstock that is processed into plastics. Xylene can also be found in paints and coatings, printing inks, adhesives and flexible foams.

 

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Financial Statements and Supplementary Data

Index

 

     Page  

Report of Independent Registered Public Accounting Firm

     F-2   

Audited Combined Financial Statements:

  

Combined Statements of Income

     F-3   

Combined Balance Sheets

     F-4   

Combined Statements of Cash Flows

     F-5   

Combined Statements of Net Investment

     F-6   

Notes to Combined Financial Statements

     F-7   

Supplemental Statistics (Unaudited)

     F-42   

 

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Report of Independent Registered Public Accounting Firm

To the Board of Directors of Marathon Petroleum Corporation:

In our opinion, the accompanying combined balance sheets and the related combined statements of income, cash flows and net investment present fairly, in all material respects, the financial position of the Refining, Marketing & Transportation Business of Marathon Oil Corporation and its subsidiaries (the “Company”) at December 31, 2010 and 2009, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2010, in conformity with accounting principles generally accepted in the United States of America. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

/s/ PricewaterhouseCoopers LLP

Houston, Texas

March 29, 2011

 

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Refining, Marketing & Transportation Business of Marathon Oil Corporation

Combined Statements of Income

 

(In millions)

   2010     2009     2008  

Revenues and other income:

      

Sales and other operating revenues (including consumer excise taxes)

   $ 62,387      $ 45,461      $ 62,895   

Sales to related parties

     100        69        2,044   

Income from equity method investments

     70        30        121   

Net gain on disposal of assets

     11        4        152   

Other income

     37        75        46   
                        

Total revenues and other income

     62,605        45,639        65,258   
                        

Costs and expenses:

      

Cost of revenues (excludes items below)

     51,685        37,003        54,648   

Purchases from related parties

     2,593        1,317        1,879   

Consumer excise taxes

     5,208        4,924        5,065   

Depreciation and amortization

     941        670        606   

Selling, general and administrative expenses

     920        842        961   

Other taxes

     247        229        244   
                        

Total costs and expenses

     61,594        44,985        63,403   
                        

Income from operations

     1,011        654        1,855   

Related party net interest and other financial income

     24        45        26   

Net interest and other financial income (costs)

     (12     (14     4   
                        

Income before income taxes

     1,023        685        1,885   

Provision for income taxes

     400        236        670   
                        

Net income

   $ 623      $ 449      $ 1,215   
                        

 

 

The accompanying notes are an integral part of these combined financial statements.

 

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Refining, Marketing & Transportation Business of Marathon Oil Corporation

Combined Balance Sheets

 

     December 31,  

(In millions)

   2010     2009  

Assets

    

Current assets:

    

Cash and cash equivalents

   $ 118      $ 128   

Related party debt securities

     2,404        864   

Receivables, less allowance for doubtful accounts of $4 and $14

     4,393        3,526   

Receivables from related parties

     5        17   

Inventories

     3,071        3,324   

Other current assets

     65        41   
                

Total current assets

     10,056        7,900   

Equity method investments

     312        365   

Property, plant and equipment, net

     11,724        11,897   

Goodwill

     837        872   

Other noncurrent assets

     303        220   
                

Total assets

   $ 23,232      $ 21,254   
                

Liabilities

    

Current liabilities:

    

Accounts payable

   $ 6,453      $ 5,507   

Payables to related parties

     341        190   

Payroll and benefits payable

     266        243   

Consumer excise taxes payable

     286        292   

Deferred income taxes

     440        265   

Long-term debt payable within one year to parent company and subsidiaries

     655        —     

Long-term debt due within one year

     11        11   

Other current liabilities

     168        129   
                

Total current liabilities

     8,620        6,637   

Long-term debt payable to parent company and subsidiaries

     2,963        2,358   

Long-term debt

     268        243   

Deferred income taxes

     1,367        1,251   

Defined benefit postretirement plan obligations

     1,493        1,361   

Deferred credits and other liabilities

     277        232   
                

Total liabilities

     14,988        12,082   

Commitments and contingencies

    

Net investment

    

Net investment

     8,867        9,692   

Accumulated other comprehensive loss

     (623     (520
                

Total net investment

     8,244        9,172   
                

Total liabilities and net investment

   $ 23,232      $ 21,254   
                

 

 

The accompanying notes are an integral part of these combined financial statements.

 

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Refining, Marketing & Transportation Business of Marathon Oil Corporation

Combined Statements of Cash Flows

 

(In millions)

   2010     2009     2008  

Increase (decrease) in cash and cash equivalents

      

Operating activities:

      

Net income

   $ 623      $ 449      $ 1,215   

Adjustments to reconcile net income to net cash provided by operating activities:

      

Depreciation and amortization

     941        670        606   

Pension and other postretirement benefits, net

     13        (100     98   

Deferred income taxes

     308        225        (123

Net gain on disposal of assets

     (11     (4     (152

Equity method investments, net

     (34     8        38   

Changes in the fair value of derivative instruments

     (16     59        94   

Changes in:

      

Current receivables

     (762     (1,448     1,968   

Inventories

     (76     (22     (198

Current accounts payable and accrued liabilities

     1,001        2,485        (2,919

Receivables from / payables to related parties

     163        111        (62

All other, net

     67        22        119   
                        

Net cash provided by operating activities

     2,217        2,455        684   
                        

Investing activities:

      

Additions to property, plant and equipment

     (1,217     (2,891     (2,787

Disposal of assets

     763        53        669   

Investments in related party debt securities – purchases

     (9,709     (16,755     (8,545

                                                                                     – redemptions

     8,019        16,915        8,064   

Investments – loans and advances

     (45     (23     (91

                         – repayments of loans and return of capital

     44        35        84   

All other, net

     —          22        (1
                        

Net cash used in investing activities

     (2,145     (2,644     (2,607
                        

Financing activities:

      

Long-term debt payable to parent company and subsidiaries – borrowings

     18,804        15        17,577   

                                                                                                                       – repayments

     (17,544     —          (15,515

Long-term debt – repayments

     (12     (13     (4

Contributions from (distributions to) parent company

     (1,330     207        (151
                        

Net cash provided by (used in) financing activities

     (82     209        1,907   
                        

Net increase (decrease) in cash and cash equivalents

     (10     20        (16

Cash and cash equivalents at beginning of year

     128        108        124   
                        

Cash and cash equivalents at end of year

   $ 118      $ 128      $ 108   
                        

 

The accompanying notes are an integral part of these combined financial statements.

 

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Refining, Marketing & Transportation Business of Marathon Oil Corporation

Combined Statements of Net Investment

 

(In millions)

   2010     2009     2008  

Net investment

      

Balance at beginning of year

   $ 9,692      $ 9,194      $ 8,011   

Net income

     623        449        1,215   

Contributions from (distributions to) parent company

     (1,448     49        (32
                        

Balance at end of year

     8,867        9,692        9,194   
                        

Accumulated other comprehensive loss

      

Defined benefit postretirement and post-employment plans:

      

Balance at beginning of year

     (526     (264     (90

Actuarial losses, net of tax

     (108     (267     (176

Prior service costs, net of tax

     5        5        2   
                        

Balance at end of year

     (629     (526     (264

Other:

      

Balance at beginning of year

     6        6        19   

Changes during year, net of tax

     —          —          (13
                        

Balance at end of year

     6        6        6   
                        

Total at end of year

     (623     (520     (258
                        

Total net investment

   $ 8,244      $ 9,172      $ 8,936   
                        

Comprehensive income

      

Net income

   $ 623      $ 449      $ 1,215   

Defined benefit postretirement and post-employment plans:

      

Actuarial losses, net of tax of $20, $168 and $111

     (108     (267     (176

Prior service costs, net of tax of ($3), ($3) and ($2)

     5        5        2   

Other:

      

Changes during year, net of tax of $0, $0 and $8

     —          —          (13
                        

Comprehensive income

   $ 520      $ 187      $ 1,028   
                        

 

The accompanying notes are an integral part of these combined financial statements.

 

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Notes to Combined Financial Statements

1. Spin-off, Description of the Business and Basis of Presentation

Spin-off – On January 13, 2011, Marathon Oil Corporation (“Marathon Oil”) announced that its board of directors had approved moving forward with plans to separate its Refining, Marketing & Transportation Businesses (“RM&T Business”) into an independent publicly traded company, Marathon Petroleum Corporation (“MPC”), through a spin-off that is expected to be completed in accordance with a separation and distribution agreement between Marathon Oil and MPC (the “Spin-Off”). The Spin-Off is generally intended to be a tax free event to the stockholders and to Marathon Oil and MPC. Marathon Oil intends to distribute, on a pro rata basis, shares of MPC common stock to the Marathon Oil stockholders as of the record date for the Spin-Off. Upon completion of the Spin-Off, Marathon Oil and MPC will each be independent and have separate public ownership, boards of directors and management. The Spin-Off is subject to final approval by Marathon Oil’s board of directors, which approval is subject to, among other things, receipt of a private letter ruling from the Internal Revenue Service and an opinion of tax counsel, in each case with respect to the tax-free nature of the Spin-Off. MPC was incorporated in Delaware as a wholly owned subsidiary of Marathon Oil on November 9, 2009.

Unless otherwise stated or the context otherwise indicates, all references in these combined financial statements to “us,” “our” or “we” mean the RM&T Business. All subsidiaries and equity method investments not contributed by Marathon Oil to MPC will remain with Marathon Oil and, together with Marathon Oil, are referred to as the “Marathon Oil Companies.”

Description of the Business – Our business consists of refining, wholesale marketing, retail marketing and pipeline transportation operations conducted primarily in the Midwest, Gulf Coast and southeastern regions of the United States, through subsidiaries, including Marathon Petroleum Company LP, Speedway LLC and Marathon Pipe Line LLC. Until October 8, 2008, we also had a 50 percent ownership interest in Pilot Travel Centers LLC (“PTC”), the operator of a nationwide network of travel centers. Until December 1, 2010, we also had operations in the Upper Great Plains region of the United States.

See Note 7 for additional information about our operations.

Basis of Presentation – The accompanying combined financial statements were prepared in connection with the Spin-Off and reflect the combined historical results of operations, financial position and cash flows of the Marathon Oil subsidiaries that operate its RM&T Business, as described above, as if such businesses had been combined for all periods presented. All significant intercompany transactions and accounts within the RM&T Business have been eliminated. The assets and liabilities in these combined financial statements have been reflected on a historical basis, as immediately prior to the Spin-Off all of the assets and liabilities presented are wholly owned by Marathon Oil and are being transferred within the Marathon Oil consolidated group. The combined statements of income also include expense allocations for certain corporate functions historically performed by the Marathon Oil Companies, including allocations of general corporate expenses related to executive oversight, accounting, treasury, tax, legal, procurement and information technology. These allocations are based primarily on specific identification, headcount or computer utilization. Our management believes the assumptions underlying the combined financial statements, including the assumptions regarding allocating general corporate expenses from the Marathon Oil Companies, are reasonable. However, these combined financial statements may not include all of the actual expenses that would have been incurred had we been a stand-alone company during the periods presented and may not reflect our combined results of operations, financial position and cash flows had we been a stand-alone company during the periods presented. Actual costs that would have been incurred if we had been a stand-alone company would depend upon multiple factors, including organizational structure and strategic decisions made in various areas, including information technology and infrastructure.

Events and transactions subsequent to the balance sheet date have been evaluated through March 29, 2011, the date these combined financial statements were issued, for potential recognition or disclosure in the combined financial statements.

 

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2. Summary of Principal Accounting Policies

Equity method investments Investments in entities over which we have significant influence, but not control, are accounted for using the equity method of accounting. This includes entities in which we hold majority ownership but the minority shareholders have substantive participating rights in the investee. Income from equity method investments represents our proportionate share of net income generated by the equity method investees.

Equity method investments are carried at our share of net assets plus loans and advances. Such investments are assessed for impairment whenever changes in the facts and circumstances indicate a loss in value has occurred, if the loss is deemed to be other than temporary. When the loss is deemed to be other than temporary, the carrying value of the equity method investment is written down to fair value, and the amount of the write-down is included in net income. Differences in the basis of the investments and the separate net asset values of the investees, if any, are amortized into net income over the remaining useful lives of the underlying assets, except for the excess related to goodwill.

Use of estimates – The preparation of financial statements in accordance with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities as of the date of the combined financial statements and the reported amounts of revenues and expenses during the respective reporting periods.

Revenue recognition – Revenues are recognized when products are shipped or services are provided to customers, title is transferred, the sales price is fixed or determinable and collectability is reasonably assured. Costs associated with revenues are recorded in cost of revenues. Shipping and other transportation costs billed to customers are presented on a gross basis in revenues and cost of revenues.

Rebates from vendors are recognized as a reduction of cost of revenues when the initiating transaction occurs. Incentives that are derived from contractual provisions are accrued based on past experience and recognized in cost of revenues.

Crude oil and refined product exchanges and matching buy/sell transactions – We enter into exchange contracts and matching buy/sell arrangements whereby we agree to deliver a particular quantity and quality of crude oil or refined products at a specified location and date to a particular counterparty and to receive from the same counterparty the same commodity at a specified location on the same or another specified date. The exchange receipts and deliveries are nonmonetary transactions, with the exception of associated grade or location differentials that are settled in cash. The matching buy/sell purchase and sale transactions are settled in cash. Both exchange and matching buy/sell transactions are accounted for as exchanges of inventory and no revenues are recorded. The exchange transactions are recognized at the carrying amount of the inventory transferred.

Consumer excise taxes – We are required by various governmental authorities, including countries, states and municipalities, to collect and remit taxes on certain consumer products. Such taxes are presented on a gross basis in revenues and costs and expenses in the combined statements of income.

Cash and cash equivalents – Cash and cash equivalents include cash on hand and on deposit and investments in highly liquid debt instruments with maturities generally of three months or less.

Accounts receivable and allowance for doubtful accounts – Our receivables primarily consist of customer accounts receivable, including proprietary credit card receivables. The allowance for doubtful accounts is the best estimate of the amount of probable credit losses in our proprietary credit card receivables. We determine the allowance based on historical write-off experience and the volume of proprietary credit card sales. We review the allowance quarterly and past-due balances over 180 days are reviewed individually for collectability. All other customer receivables are recorded at the invoiced amounts and generally do not bear interest. Account balances for these customer receivables are charged directly to bad debt expense when it becomes probable the receivable will not be collected.

 

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Approximately 48 percent and 52 percent of our accounts receivable balances at December 31, 2010 and 2009 are related to sales of crude oil or refinery feedstocks to customers with whom we have master netting agreements. We have master netting agreements with more than 70 companies engaged in the crude oil or refinery feedstock trading and supply business or the petroleum refining industry. A master netting agreement generally provides for a once per month net cash settlement of the accounts receivable from and the accounts payable to a particular counterparty.

Inventories – Inventories are carried at the lower of cost or market value. Cost of inventories is determined primarily under the last-in, first-out (“LIFO”) method.

Derivative instruments – We may use derivatives to manage a portion of our exposure to commodity price risk. We also have limited authority to use selective derivative instruments that assume market risk. All derivative instruments are recorded at fair value. Commodity derivatives are reflected on the combined balance sheet on a net basis by brokerage firm, as they are governed by master netting agreements. Cash flows related to derivatives used to manage commodity price risk are classified in operating activities with the underlying transactions.

Derivatives are not designated as hedges and may include commodity derivatives used to manage price risk on (1) inventories, (2) fixed price sales of refined products, (3) the acquisition of foreign-sourced crude oil and (4) the acquisition of ethanol for blending with refined products. Changes in the fair value of derivatives are recognized immediately in net income.

Our derivative instruments contain no significant contingent credit features.

All of our financial instruments, including derivatives, involve elements of credit and market risk. The most significant portion of our credit risk relates to nonperformance by counterparties. The counterparties to our financial instruments consist primarily of major financial institutions and companies within the energy industry. To manage counterparty risk associated with financial instruments, we select and monitor counterparties based on an assessment of their financial strength and on credit ratings, if available. Additionally, we limit the level of exposure with any single counterparty.

Property, plant and equipment – Property, plant and equipment are recorded at cost and depreciated on a straight-line basis over the estimated useful lives of the assets, which range from 4 to 42 years. Such assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If the sum of the expected undiscounted future cash flows from the use of the asset and its eventual disposition is less than the carrying amount of the asset, an impairment loss is recognized based on the fair value of the asset.

When items of property, plant and equipment depreciated on an individual basis are sold or otherwise disposed of, any gains or losses are reported in net income. Gains on the disposal of property, plant and equipment are recognized when earned, which is generally at the time of closing. If a loss on disposal is expected, such losses are recognized when the assets are classified as held for sale. Proceeds from the disposal of property, plant and equipment depreciated on a group basis are credited to accumulated depreciation and amortization with no immediate effect on net income.

Goodwill – Goodwill represents the excess of the purchase price over the estimated fair value of the net assets acquired in the acquisition of a business. Goodwill is not amortized, but rather is tested for impairment annually and when events or changes in circumstances indicate that the fair value of a reporting unit with goodwill has been reduced below carrying value. The impairment test requires allocating goodwill and other assets and liabilities to reporting units. The fair value of each reporting unit is determined and compared to the book value of the reporting unit. If the fair value of the reporting unit is less than the book value, including goodwill, then the recorded goodwill is impaired to its implied fair value with a charge to operating expense.

 

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Major maintenance activities – Costs for planned major maintenance activities are expensed in the period incurred. These types of costs include contractor repair services, materials and supplies, equipment rentals and our labor costs.

Environmental costs – Environmental expenditures are capitalized if the costs mitigate or prevent future contamination or if the costs improve environmental safety or efficiency of the existing assets. We provide for remediation costs and penalties when the responsibility to remediate is probable and the amount of associated costs can be reasonably estimated. The timing of remediation accruals coincides with completion of a feasibility study or the commitment to a formal plan of action. Remediation liabilities are accrued based on estimates of known environmental exposure and are discounted when the estimated amounts are reasonably fixed and determinable. If recoveries of remediation costs from third parties are probable, a receivable is recorded and is discounted when the estimated amount is reasonably fixed and determinable.

Asset retirement obligations – The fair value of asset retirement obligations is recognized in the period in which the obligations are incurred if a reasonable estimate of fair value can be made. Conditional asset retirement obligations for removal and disposal of fire-retardant material from certain refining facilities have been recognized. The amounts recorded for such obligations are based on the most probable current cost projections. Asset retirement obligations have not been recognized for the removal of materials and equipment from or the closure of certain refinery, pipeline and marketing assets because the fair value cannot be reasonably estimated since the settlement dates of the obligations are indeterminate. The recorded asset retirement obligations are not material to the combined financial statements.

Income taxes – Our taxable income was historically included in the consolidated U.S. federal income tax returns of Marathon Oil and in a number of consolidated state income tax returns. In the accompanying combined financial statements, our provision for income taxes is computed as if we were a stand-alone tax-paying entity.

Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of assets and liabilities and their tax bases. Deferred tax assets are recorded when it is more likely than not that they will be realized. The realization of deferred tax assets is assessed periodically based on several factors, primarily our expectation to generate sufficient future taxable income.

Stock-based compensation arrangements – The fair value of Marathon Oil stock options and stock-settled stock appreciation rights (collectively, “stock option awards”) granted to our employees is estimated on the date of grant using the Black-Scholes option pricing model. The model employs various assumptions, based on Marathon Oil management’s estimates at the time of grant, which impact the calculation of fair value and ultimately, the amount of expense that is recognized over the life of the stock option award. Of the required assumptions, the expected life of the stock option award and the expected volatility of Marathon Oil’s stock price have the most significant impact on the fair value calculation. Marathon Oil’s management has utilized historical data and analyzed current information that reasonably supports these assumptions.

The fair value of Marathon Oil’s restricted stock awards granted to our employees is determined based on the fair market value of Marathon Oil common stock on the date of grant.

Our stock-based compensation expense is recognized based on Marathon Oil management’s estimate of the awards that are expected to vest, using the straight-line attribution method for all service-based awards with a graded vesting feature. If actual forfeiture results are different than expected, adjustments to recognized compensation expense may be required in future periods. Compensation expense is recognized over the vesting period and is adjusted if conditions of the award are not met. We record Marathon Oil stock-based compensation expense as non-cash capital contributions.

 

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3. Accounting Standards

Recently Adopted

Variable interest accounting standards were amended by the Financial Accounting Standards Board (“FASB”) in June 2009. The new accounting standards replace the quantitative-based risks and rewards calculation for determining which enterprise has a controlling financial interest in a variable interest entity with an approach focused on identifying which enterprise has the power to direct the activities of a variable interest entity. In addition, the concept of qualifying special-purpose entities has been eliminated. Ongoing assessments of whether an enterprise is the primary beneficiary of a variable interest entity are also required. The amended variable interest accounting standards require reconsideration for determining whether an entity is a variable interest entity when changes in facts and circumstances occur such that the holders of the equity investment at risk, as a group, lack the power from voting rights or similar rights to direct the activities of the entity. Enhanced disclosures are required for any enterprise that holds a variable interest in a variable interest entity. Prospective application of these standards in the first quarter of 2010 did not have a significant impact on our combined results of operations, financial position or cash flows. The required disclosures are presented in Note 6.

A standard to improve disclosures about fair value measurements was issued by the FASB in January 2010. The additional disclosures required include: (1) the different classes of assets and liabilities measured at fair value, (2) the significant inputs and techniques used to measure Level 2 and Level 3 assets and liabilities for both recurring and nonrecurring fair value measurements, (3) the gross presentation of purchases, sales, issuances and settlements for the rollforward of Level 3 activity and (4) the transfers in and out of Levels 1 and 2. We adopted all aspects of this standard in the first quarter of 2010. This adoption did not have a significant impact on our combined results of operations, financial position or cash flows. The required disclosures are presented in Note 15.

Measuring liabilities at fair value, a FASB accounting standards update, was issued in August 2009. This update provides clarification for circumstances in which a quoted price in an active market for an identical liability is not available. In such circumstances, an entity is required to measure fair value using (1) the quoted price of the identical liability when traded as an asset (2) quoted prices for similar liabilities or similar liabilities when traded as assets or (3) another valuation technique consistent with the fair value measurement principles such as an income approach or a market approach. The update for measuring liabilities at fair value was effective for the third quarter of 2009. Adoption did not have an impact on our combined results of operations, financial position or cash flows.

Interim disclosures about fair value of financial instruments were expanded by the FASB in April 2009. Disclosures about fair value of financial instruments are now required in interim reporting periods for publicly traded companies. This change was effective for the second quarter of 2009 and did not require disclosures for earlier periods presented for comparative purposes. Adoption did not have an impact on our combined results of operations, financial position or cash flows. The required disclosures are presented in Note 15.

Disclosure requirements for derivative instruments and hedging activities were expanded by the FASB in March 2008 to provide information regarding (1) how and why an entity uses derivative instruments, (2) how derivative instruments and related hedged items are accounted for and (3) how derivative instruments and related hedged items affect an entity’s financial position, financial performance and cash flows. Requirements include qualitative disclosures about objectives and strategies for using derivatives, quantitative disclosures about fair value amounts and gains and losses on derivative instruments and disclosures about credit-risk-related contingent features in derivative agreements. The amendments were effective January 1, 2009 and encouraged, but did not require, disclosures for earlier periods presented for comparative purposes at initial adoption. The required disclosures appear in Note 16.

Accounting for business combinations was revised by the FASB in December 2007. This significantly changes the accounting for business combinations. An acquiring entity is required to recognize all the assets acquired,

 

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liabilities assumed and any noncontrolling interest in the acquiree at their acquisition-date fair value, with limited exceptions. The definition of a business is expanded and is expected to be applicable to more transactions. In addition, there are changes in the accounting treatment for changes in control, step acquisitions, transaction costs, acquired contingent liabilities, in-process research and development, restructuring costs, changes in deferred tax asset valuation allowances as a result of a business combination and changes in income tax uncertainties after the acquisition date. Accounting for changes in valuation allowances for acquired deferred tax assets and the resolution of uncertain tax positions for prior business combinations will impact tax expense instead of impacting recorded goodwill. Additional disclosures are also required. In April 2009, the FASB issued guidance for accounting for assets acquired and liabilities assumed in a business combination that arise from contingencies. Both the December 2007 revision and the April 2009 guidance were effective on January 1, 2009 for all new business combinations. Because we had no business combinations in progress at January 1, 2009 and no significant business combinations completed since then, adoption did not have a significant impact on our combined results of operations, financial position or cash flows.

Accounting and reporting standards for fair value measurements were issued in September 2006 by the FASB. The standards define fair value, establish a framework for measuring fair value in generally accepted accounting principles and expand disclosures about fair value measurements. The standards do not require any new fair value measurements but may require some entities to change their measurement practices. We adopted these standards effective January 1, 2008 with respect to financial assets and liabilities and effective January 1, 2009 with respect to nonfinancial assets and liabilities. Adoption did not have a significant impact on our combined results of operations, financial position or cash flows.

An employer’s disclosures about plan assets of defined benefit pension or other postretirement plans were expanded in December 2008 by the FASB. Additional disclosures about investment policies and strategies, the reporting of fair value by asset category and other information about fair value measurements is required. This was effective January 1, 2009 and early application was permitted. These additional disclosures are presented in Note 18.

4. Related Party Transactions

During 2010, 2009 and 2008 our related parties included:

 

   

Marathon Oil Companies.

 

   

The Andersons Clymers Ethanol LLC (“TACE”), in which we have a 35 percent interest, and The Andersons Marathon Ethanol LLC (“TAME”), in which we have a 50 percent interest. These companies each own an ethanol production facility.

 

   

Centennial Pipeline LLC (“Centennial”), in which we have a 50 percent interest. Centennial operates a refined products pipeline and storage facility.

 

   

LOOP LLC (“LOOP”), in which we have a 51 percent noncontrolling interest. LOOP operates an offshore oil port.

 

   

Pilot Travel Centers LLC (“PTC”), in which we held a 50 percent interest until October 2008. PTC owns and operates travel centers primarily in the United States.

 

   

Other equity method investees.

We believe that transactions with related parties, other than certain transactions with Marathon Oil related to the provision of administrative services, were conducted on terms comparable to those with unrelated parties. See below for a description of transactions with the Marathon Oil Companies.

 

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Revenues from related parties were as follows:

 

(In millions)

   2010      2009      2008  

Equity method investees:

        

PTC

   $ —         $ —         $ 1,789   

Centennial

     54         34         31   

Other equity method investees

     7         4         7   

Marathon Oil Companies

     39         31         217   
                          

Total

   $ 100       $ 69       $ 2,044   
                          

Related party sales to PTC and Centennial consist primarily of petroleum products. Related party sales to the Marathon Oil Companies consist primarily of crude oil and are based on contractual prices that are market-based.

Purchases from related parties were as follows:

 

(In millions)

   2010      2009      2008  

Equity method investees:

        

Centennial

   $ 72       $ 58       $ 61   

LOOP

     35         40         35   

TAME

     109         99         99   

TACE

     34         44         89   

Other equity method investees

     56         46         37   

Marathon Oil Companies

     2,287         1,030         1,558   
                          

Total

   $ 2,593       $ 1,317       $ 1,879   
                          

Related party purchases from Centennial consist primarily of refinery feedstocks and refined product transportation costs. Related party purchases from LOOP and other equity method investees consist primarily of crude oil transportation costs. Related party purchases from TAME and TACE consist of ethanol. Related party purchases from the Marathon Oil Companies consist primarily of crude oil and natural gas, which are recorded at contracted prices that are market-based.

The Marathon Oil Companies perform certain services for us such as executive oversight, accounting, treasury, tax, legal, procurement and information technology services. In 2008, we also participated in certain Marathon Oil Companies’ insurance, benefit and incentive plans. We also provide certain services to the Marathon Oil Companies, such as legal, human resources and tax services. The two groups of companies charge each other for these shared services based on a rate that is negotiated between them. Where costs incurred by the Marathon Oil Companies on our behalf could not practically be determined by specific utilization, these costs were primarily allocated to us based on headcount or computer utilization. Our management believes these allocations are a reasonable reflection of the utilization of services provided. However, these allocations may not fully reflect the expenses that would have been incurred had we been a stand-alone company during the periods presented. Net charges from the Marathon Oil Companies for these services reflected within selling, general and administrative expenses in the combined statements of income were $43 million, $30 million and $49 million for 2010, 2009 and 2008.

Current receivables from related parties were as follows:

 

     December 31,  

(In millions)

   2010      2009  

Equity method investees

   $ 1       $ 1   

Marathon Oil Companies

     4         16   
                 

Total

   $ 5       $ 17   
                 

 

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Payables to related parties were as follows:

 

     December 31,  

(In millions)

   2010      2009  

Equity method investees:

     

LOOP

   $ 3       $ 17   

TAME

     5         7   

TACE

     1         2   

Other equity method investees

     3         3   

Marathon Oil Companies

     329         161   
                 

Total

   $ 341       $ 190   
                 

On July 18, 2007, we entered into a credit agreement with MOC Portfolio Delaware, Inc. (“PFD”), a subsidiary of Marathon Oil, providing for a $2.9 billion revolving credit facility which was scheduled to terminate on May 4, 2012. On October 28, 2010, we amended the credit agreement with PFD to increase the total amount available to $4.4 billion and extend the scheduled termination date to November 1, 2013. During 2010, we borrowed $18,804 million and repaid $17,544 million under this credit facility. There was no activity under this credit agreement during 2009. During 2008, we borrowed $16,826 million and repaid $15,515 million under this credit facility. The outstanding balance was $2,571 million at December 31, 2010 and $1,311 million as of December 31, 2009. At December 31, 2010, $655 million of the outstanding balance is classified as current since it is expected to be repaid prior to the Spin-Off. For U.S. Dollar loans under this credit facility, the interest rate is the higher of the prime rate or the sum of 0.5 percent, plus the federal funds rate. For Euro Dollar loans under this credit facility, the interest rate is based on LIBOR plus a margin ranging from 0.25 percent to 1.125 percent. The margin varies based on our usage and credit rating.

On July 18, 2007, we entered into a $1.1 billion revenue bonds proceeds subsidiary loan agreement with Marathon Oil to finance a portion of our Garyville, Louisiana refinery major expansion project. Proceeds from the bonds were disbursed by Marathon Oil to us upon our request for reimbursement of expenditures related to the expansion. During 2009 and 2008, we borrowed $15 million and $751 million under this agreement. There were no borrowings in 2010. The outstanding balance was $1,047 million as of December 31, 2010 and 2009. The loan is scheduled to become due on June 1, 2037, or such earlier date as Marathon Oil’s revenue bonds become due and payable. The loan bears an interest rate of 5.125 percent annually.

At December 31, 2010, $2,963 million of the debt payable to Marathon Oil and PFD that was expected to be repaid prior to the Spin-Off was classified as non-current since we intended to refinance the obligations on a long-term basis. Replacement long-term debt was issued on February 1, 2011. See Note 22.

In 2005, we entered into agreements with PFD to invest our excess cash. Such investments consist of shares of PFD Redeemable Class A, Series 1 Preferred Stock (“PFD Preferred Stock”). We have the right to redeem all or any portion of the PFD Preferred Stock on any business day at $2,000 per share. Dividends on PFD Preferred Stock are declared and settled daily. At December 31, 2010 and 2009, our investments in PFD Preferred Stock totaled $2,404 million and $864 million. Our investments in PFD Preferred Stock are accounted for as available-for-sale debt securities. See Note 9.

Related party net interest and other financial income was as follows:

 

(In millions)

   2010     2009     2008  

Dividend income:

      

PFD Preferred Stock

   $ 24      $ 45      $ 26   

Interest expense:

      

PFD revolving credit agreement

     12        10        23   

Marathon Oil loan agreement

     54        54        28   

Interest capitalized

     (66     (64     (51
                        

Net interest expense

     —          —          —     
                        

Related party net interest and other financial income

   $ 24      $ 45      $ 26   
                        

 

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We also recorded property, plant and equipment additions related to capitalized interest incurred by Marathon Oil on our behalf of $20 million, $158 million and $64 million in 2010, 2009 and 2008, which were reflected as contributions from parent company.

Certain asset or liability transfers between Marathon Oil and the RM&T Business and certain expenses, such as stock-based compensation, incurred by Marathon Oil on behalf of the RM&T Business have been recorded as non-cash capital contributions. The non-cash capital contributions from (distributions to) Marathon Oil were ($118 million), ($158 million) and $119 million in 2010, 2009 and 2008.

5. Dispositions

Minnesota Assets – On December 1, 2010, we completed the sale of most of our Minnesota assets. These assets included the 74,000 barrel-per-day St. Paul Park refinery and associated terminals, 166 SuperAmerica ® -branded convenience stores (including six stores in Wisconsin), along with the SuperMom’s ® bakery (a baked goods supply operation) and certain associated trademarks, SuperAmerica Franchising LLC, interests in pipeline assets in Minnesota and associated inventories. The refinery and terminal assets were part of our Refining & Marketing segment, the convenience stores and bakery were part of our Speedway segment, and the interests in pipeline assets were part of our Pipeline Transportation segment. This transaction value was approximately $935 million, which included approximately $330 million for inventories. We received $740 million in cash, net of closing costs, but prior to post-closing adjustments. The terms of the sale included (1) a preferred stock interest in the entity that holds the Minnesota assets with a stated value of $80 million, (2) a maximum $125 million earnout provision payable to us over eight years, (3) a maximum $60 million of margin support payable to the buyer over two years, up to a maximum of $30 million per year, (4) a receivable from the buyer of $107 million payable in the first quarter of 2011, and (5) guarantees with a maximum exposure of $11 million made by us on behalf of and to the buyer related to a limited number of convenience store sites. As a result of this continuing involvement, the related gain on sale of $89 million was deferred. The timing and amount of deferred gain ultimately recognized in the income statement is subject to the resolution of our continuing involvement.

We will provide transition services for a period of twelve months, that can be renewed for up to an additional six months at the buyer’s option. The buyer can cancel the transition services arrangement at any time with minimal notice. Although we are providing personnel to operate and maintain these Minnesota assets, the buyer is providing management and operational strategy for the business.

Pilot Travel Centers – On October 8, 2008, we completed the sale of our 50 percent equity method investment in PTC. Sale proceeds were $625 million and the pretax gain on the sale was $126 million. Immediately preceding the sale, we received a $75 million partial redemption of our ownership interest from PTC that was accounted for as a return of investment. This investment was not included in any of our operating segments.

6. Variable Interest Entity

In December 2010, we closed the sale of most of our Minnesota assets, plus related inventories. Certain terms of the transaction resulted in the creation of variable interests in a variable interest entity (“VIE”) that owns the Minnesota assets. These variable interests include our ownership of a preferred equity interest in the VIE, operating margin support in the form of a capped liquidity guarantee and reimbursements to us for costs incurred in connection with transition services provided to the buyer. Our preferred equity interest in this VIE was reflected at $80 million in other noncurrent assets on our combined balance sheet as of December 31, 2010. At December 31, 2010, there is an additional $107 million receivable due from the buyer in the first quarter of 2011, related to a portion of the inventories sold. See Note 5.

We are not the primary beneficiary of this VIE and, therefore, do not consolidate it; we lack the power to control or direct the activities that impact the VIE’s operations and economic performance. Our preferred equity interest

 

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does not allow us to appoint a majority of the Board of Managers and limits our ability to vote on only certain matters. Also, individually and cumulatively, none of our variable interests expose us to residual returns or expected losses that are significant to the VIE.

Our maximum exposure to loss due to this VIE is $258 million. Our maximum exposure to loss was quantified based on contractual arrangements related to the sale. We did not provide any financial assistance to the buyer outside of our contractual arrangements related to the sale. See Note 5 for information related to each individual variable interest.

7. Segment Information

We have three reportable operating segments: Refining & Marketing; Speedway; and Pipeline Transportation. Each of these segments is organized and managed based upon the nature of the products and services they offer.

 

   

Refining & Marketing – refines crude oil and other feedstocks at our refineries in the Gulf Coast and Midwest regions of the United States and distributes refined products through various means, including barges, terminals and trucks that we own or operate. We sell refined products to wholesale marketing customers domestically and internationally, to buyers on the spot market, to our Speedway segment and to dealers and jobbers who operate Marathon ® -branded retail outlets;

 

   

Speedway – sells transportation fuels and convenience products in the retail market, primarily in the Midwest, through Speedway ® -branded convenience stores; and

 

   

Pipeline Transportation – transports crude oil and other feedstocks to our refineries and other locations, delivers refined products to wholesale and retail market areas and owns, among other transportation-related assets, a majority interest in LOOP LLC, which is the owner and operator of the only U.S. deepwater oil port.

As discussed in Note 5, on December 1, 2010, we disposed of most of our Minnesota assets. Segment information for all periods prior to the disposition includes amounts for these operations.

Information regarding assets by segment is not presented because it is not reviewed by the chief operating decision maker. Segment income represents income from operations attributable to the operating segments. Our 50 percent equity method investment in PTC, which was sold in October 2008, RM&T Business corporate administrative expenses, including those allocated from the Marathon Oil Companies, and costs related to certain non-operating assets are not allocated to the operating segments. In addition, certain items that affect comparability (as determined by the chief operating decision maker) are not allocated to the operating segments.

 

(In millions)

   Refining
& Marketing
    Speedway      Pipeline
Transportation
    Total  

Year Ended December 31, 2010

         

Revenues:

         

Customer

   $ 49,844      $ 12,494       $ 49      $ 62,387   

Intersegment (a)

     7,394        —           347        7,741   

Related parties

     95        —           5        100   
                                 

Segment revenues

     57,333        12,494         401        70,228   

Elimination of intersegment revenues

     (7,394     —           (347     (7,741
                                 

Total revenues

   $ 49,939      $ 12,494       $ 54      $ 62,487   
                                 

Segment income from operations

   $ 800      $ 293       $ 183      $ 1,276   

Income from equity method investments

     9        —           61        70   

Depreciation and amortization (b)

     739        111         62        912   

Capital expenditures (c)(d)

     1,060        84         21        1,165   

 

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(In millions)

   Refining
& Marketing
    Speedway      Pipeline
Transportation
    Total  

Year Ended December 31, 2009

         

Revenues:

         

Customer

   $ 34,578      $ 10,838       $ 45      $ 45,461   

Intersegment (a)

     6,022        —           332        6,354   

Related parties

     65        —           4        69   
                                 

Segment revenues

     40,665        10,838         381        51,884   

Elimination of intersegment revenues

     (6,022     —           (332     (6,354
                                 

Total revenues

   $ 34,643      $ 10,838       $ 49      $ 45,530   
                                 

Segment income from operations

   $ 452      $ 212       $ 172      $ 836   

Income (loss) from equity method investments (b)

     (1     —           41        40   

Depreciation and amortization

     498        131         41        670   

Capital expenditures (c)(d)

     2,468        49         58        2,575   

 

(In millions)

   Refining
& Marketing
    Speedway      Pipeline
Transportation
    Total  

Year Ended December 31, 2008

         

Revenues:

         

Customer

   $ 49,486      $ 13,365       $ 44      $ 62,895   

Intersegment (a)

     8,473        —           326        8,799   

Related parties

     2,041        —           3        2,044   
                                 

Segment revenues

     60,000        13,365         373        73,738   

Elimination of intersegment revenues

     (8,473     —           (326     (8,799
                                 

Total revenues

   $ 51,527      $ 13,365       $ 47      $ 64,939   
                                 

Segment income from operations

   $ 1,377      $ 284       $ 183      $ 1,844   

Income (loss) from equity method investments (b)

     (17     —           40        23   

Depreciation and amortization (c)

     442        124         38        604   

Capital expenditures (d)

     2,761        62         131        2,954   

 

(a)

Management believes intersegment transactions were conducted under terms comparable to those with unrelated parties.

(b)

Differences between segment totals and RM&T Business totals represent amounts related to unallocated items and are included in “Items not allocated to segments” in the reconciliation below.

(c)

Differences between segment totals and RM&T Business totals represent amounts related to RM&T Business corporate administrative activities

(d)

Capital expenditures include changes in accruals.

The following reconciles segment income from operations to income before income taxes as reported in the combined statements of income:

 

(In millions)

   2010     2009     2008  

Segment income from operations

   $ 1,276      $ 836      $ 1,844   

Items not allocated to segments

      

Corporate and other unallocated items (a)

     (236     (172     51   

Impairments (b)

     (29     (10     (40

Net interest and other financial income

     12        31        30   
                        

Income before income taxes

   $ 1,023      $ 685      $ 1,885   
                        

 

(a)

Corporate and other unallocated items consists primarily of income from the RM&T Business’s 50 percent equity method investment in PTC through its disposition in October 2008, the gain on the sale of the RM&T

 

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Business’s interest in PTC in 2008, RM&T Business corporate administrative expenses, including allocations from the Marathon Oil Companies, and costs related to certain non-operating assets.

(b)

Impairments in 2010 and 2009 are further discussed in Note 15. The 2008 impairment related to our investments in ethanol producing companies.

The following reconciles total revenues to sales and other operating revenues (including consumer excise taxes) as reported in the combined statements of income:

 

(In millions)

   2010      2009      2008  

Total revenues

   $ 62,487       $ 45,530       $ 64,939   

Less: Sales to related parties

     100         69         2,044   
                          

Sales and other operating revenues (including consumer excise taxes)

   $ 62,387       $ 45,461       $ 62,895   
                          

Revenues by product line were:

 

(In millions)

   2010      2009      2008  

Refined products

   $ 56,025       $ 40,518       $ 59,300   

Merchandise

     3,369         3,308         3,028   

Crude oil and refinery feedstocks

     2,890         1,533         2,416   

Transportation and other

     203         171         195   
                          

Total revenues

     62,487         45,530         64,939   

Less: Sales to related parties

     100         69         2,044   
                          

Sales and other operating revenues (including consumer excise taxes)

   $ 62,387       $ 45,461       $ 62,895   
                          

No single customer accounted for more than 10 percent of annual revenues.

Revenues and long-lived assets, including property, plant and equipment and investments, are primarily in the United States. Those outside the United States are not significant.

8. Other Items

Net interest and other financial income (costs) was:

 

(In millions)

   2010     2009     2008  

Interest:

      

Interest income

   $ 2      $ 3      $ 6   

Interest expense

     (24     (22     (17

Interest capitalized (a)

     17        14        9   
                        

Total interest

     (5     (5     (2

Other:

      

Net foreign currency gains (losses)

     (6     (8     7   

Other

     (1     (1     (1
                        

Total other

     (7     (9     6   
                        

Net interest and other financial income (costs)

   $ (12   $ (14   $ 4   
                        

 

(a)

See Note 4 for information on related party capitalized interest.

 

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9. Investments in Debt and Equity Securities

Our investments in debt and equity securities, which are classified as available-for-sale, consist of shares of PFD Preferred Stock and shares of publicly traded equity securities. See Note 4 for additional information on PFD Preferred Stock. On the combined balance sheets, PFD Preferred Stock is reflected as related party debt securities, and other equity securities are recorded in other noncurrent assets.

The following table summarizes our investments in debt and equity securities:

 

(In millions)

   Amortized
Cost
     Gross
Unrealized
Gains
     Fair
Value
 

December 31, 2010

        

PFD Preferred Stock

   $ 2,404       $ —         $ 2,404   

Other equity securities

     2         1         3   
                          

Total

   $ 2,406       $ 1       $ 2,407   
                          

December 31, 2009

        

PFD Preferred Stock

   $ 864       $ —         $ 864   

Other equity securities

     2         1         3   
                          

Total

   $ 866       $ 1       $ 867   
                          

We had no other-than-temporary impairments to our investments in debt and equity securities in 2010, 2009 and 2008.

During 2008, we sold available-for-sale equity securities for proceeds of $15 million and recorded a pretax gain of $13 million on the sale. Realized gains on the sale of equity securities are determined using a specific identification method, and such gains are reflected as a component of net gain on disposal of assets on the combined statements of income. There were no realized gains on our equity securities investments in 2010 or 2009.

The following table summarizes the pretax gains or losses on available-for-sale equity securities included in accumulated other comprehensive loss:

 

(In millions)

   2010      2009      2008  

Gross realized gain on sale reclassifed to earnings

   $ —         $ —         $ 13   

Change in unrealized holding gain (loss)

   $ —         $ 1       $ (9

10. Income Taxes

Income tax provisions (benefits) were:

 

       2010     2009      2008  

(In millions)

   Current     Deferred      Total     Current     Deferred      Total      Current      Deferred     Total  

Federal

   $ 81      $ 289       $ 370      $ 10      $ 209       $ 219       $ 707       $ (101   $ 606   

State and local

     15        19         34        (3     16         13         75         (22     53   

Foreign

     (4     —           (4     4        —           4         11         —          11   
                                                                            

Total

   $ 92      $ 308       $ 400      $ 11      $ 225       $ 236       $ 793       $ (123   $ 670   
                                                                            

 

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A reconciliation of the federal statutory income tax rate (35 percent) applied to income before income taxes to the provision for income taxes follows:

 

     2010     2009     2008  

Statutory rate applied to income before income taxes

     35      35      35 

State and local income taxes, net of federal income tax effects

     3        2        3   

Domestic manufacturing deduction

     —          —          (1

Legislation (a)

     2        —          —     

Excess capital losses utilized (b)

     —          —          (1

Effects of dividends received deduction and partially owned companies

     (1     (3     —     
                        

Provision for income taxes

     39      34      36 
                        

 

(a)

The Patient Protection and Affordable Care Act (“PPACA”) and the Health Care and Education Reconciliation Act of 2010 were signed into law in March 2010. These new laws effectively change the tax treatment of federal subsidies paid to sponsors of retiree health plans that provide prescription drug benefits that are at least actuarially equivalent to the corresponding benefits provided under Medicare Part D. The federal subsidy paid to employers was introduced as part of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (the “MPDIMA”). Under the MPDIMA, the federal subsidy does not reduce our income tax deduction for the costs of providing such prescription drug plans, nor is it subject to income tax individually. Beginning in 2013, under the 2010 legislation, our income tax deduction for the costs of providing Medicare Part D-equivalent prescription drug benefits to retirees will be reduced by the amount of the federal subsidy. Such a change in the tax law must be recognized in earnings in the period enacted, regardless of the effective date. As a result, we recorded a charge of $26 million in the first quarter of 2010 for the write-off of deferred tax assets to reflect the change in the tax treatment of the federal subsidy.

(b)

2008 includes tax benefits of $11 million for the deduction of capital loss carryforwards. We had an excess capital loss at December 31, 2005, with a valuation allowance that was carried forward and offset against tax capital gains generated in 2006 through 2008.

Deferred tax assets and liabilities resulted from the following:

 

     December 31,  

(In millions)

   2010      2009  

Deferred tax assets:

     

Employee benefits

   $ 693       $ 637   

Operating loss carryforwards (a)

     —           399   

Foreign tax credits

     —           17   

Deferred revenue

     18         21   

Other

     41         44   
                 

Total deferred tax assets

     752         1,118   

Deferred tax liabilities:

     

Property, plant and equipment

     1,822         1,877   

Inventories

     607         632   

Investments in subsidiaries and affiliates

     119         105   

Derivative instruments

     9         18   

Other

     2         2   
                 

Total deferred tax liabilities

     2,559         2,634   
                 

Net deferred tax liabilities

   $ 1,807       $ 1,516   
                 

 

(a)

At December 31, 2010 and 2009, federal operating loss carryforwards were $0 and $1,050 million, and state operating loss carryforwards were $2 million and $682 million. The operating loss carryforwards represent

 

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net operating losses that would have resulted in 2009 if we reported our income taxes as a stand-alone tax-paying entity rather than as part of the Marathon Oil consolidated group. The December 31, 2010 state loss carryforwards expire in 2014 and 2031. The state loss carryforward balances will not be available to us at or subsequent to the Spin-Off.

Net deferred tax liabilities were classified in the combined balance sheets as follows:

 

     December 31,  

(In millions)

   2010      2009  

Liabilities:

     

Current deferred income taxes

   $ 440       $ 265   

Noncurrent deferred income taxes

     1,367         1,251   
                 

Net deferred tax liabilities

   $ 1,807       $ 1,516   
                 

Marathon Oil is continuously undergoing examination of its consolidated U.S. federal income tax returns by the Internal Revenue Service. Such audits have been completed through the 2007 tax year. We believe adequate provision has been made in these combined financial statements for federal income taxes and interest which may become payable for years not yet settled. Further, Marathon Oil is routinely involved in U.S. state income tax audits. We believe all state income tax audits will be resolved within the amounts paid and/or provided for these liabilities. As of December 31, 2010, Marathon Oil’s income tax returns remain subject to examination in the following major RM&T Business tax jurisdictions for the tax years indicated:

 

United States Federal

     2008 - 2009   

States

     2004 - 2009   

The following table summarizes the activity in unrecognized tax benefits:

 

(In millions)

   2010     2009     2008  

January 1 balance

   $ 19      $ 16      $ 3   

Additions for tax positions of prior years

     7        15        11   

Reductions for tax positions of prior years

     (1     (11     —     

Settlements

     (11     (1     2   
                        

December 31 balance

   $ 14      $ 19      $ 16   
                        

If the unrecognized tax benefits as of December 31, 2010 were recognized, $9 million would affect our effective income tax rate. There were $8 million of uncertain tax positions as of December 31, 2010 for which it is reasonably possible that the amount of unrecognized tax benefits would decrease during 2011.

Interest and penalties related to income taxes are recorded as part of the provision for income taxes. Such interest and penalties were net expenses of $1 million, $1 million and $2 million in 2010, 2009 and 2008. As of December 31, 2010, 2009 and 2008, $4 million, $2 million and $1 million of interest and penalties were accrued related to income taxes.

 

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11. Inventories

 

     December 31,  

(In millions)

   2010      2009  

Crude oil and refinery feedstocks

   $ 1,118       $ 1,259   

Refined products

     1,716         1,732   

Merchandise

     65         82   

Supplies and sundry items

     172         251   
                 

Total (at cost)

   $ 3,071       $ 3,324   
                 

The LIFO method accounted for 94 percent and 92 percent of total inventory value at December 31, 2010 and 2009. Current acquisition costs were estimated to exceed the LIFO inventory value at December 31, 2010 and 2009 by $4,119 million and $3,110 million, respectively. Cost of revenues decreased and income from operations increased by $4 million, less than $1 million and $12 million in 2010, 2009 and 2008 as a result of liquidations of LIFO inventories, excluding inventories liquidated in dispositions.

12. Equity Method Investments

 

(In millions)

   Ownership as of
December 31, 2010
    December 31,  
     2010      2009  

LOOP

     51   $ 181       $ 150   

TACE (a)

     35     35         31   

TAME (a)

     50     30         31   

Minnesota Pipe Line Company, LLC (b)

     —          —           89   

Other

       66         64   
                   

Total

     $ 312       $ 365   
                   

 

(a)

Our investments in TAME and TACE were impaired by $20 million and $20 million in 2008 due to an other-than-temporary loss in value as a result of declining demand and prices for ethanol, a poor outlook for short-term future profitability and, in the case of one production facility, recurring operating losses.

(b)

On December 1, 2010, we completed the sale of most of our Minnesota assets which included our 17% ownership interest in Minnesota Pipe Line Company, LLC, as discussed in Note 5.

Summarized financial information for equity method investees is as follows:

 

(In millions)

   2010      2009      2008  

Income data:

        

Revenues and other income

   $ 939       $ 868       $ 14,032   

Income from operations

     196         137         410   

Net income

     170         102         353   

Balance sheet data – December 31:

        

Current assets

   $ 266       $ 207      

Noncurrent assets

     1,162         1,683      

Current liabilities

     111         166      

Noncurrent liabilities

     731         698      

As of December 31, 2010, the carrying value of our equity method investments was $31 million higher than the underlying net assets of investees. This basis difference is being amortized or accreted into net income over the remaining estimated useful lives of the underlying net assets, except for $49 million of excess related to goodwill.

 

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Dividends and partnership distributions received from equity method investees (excluding distributions that represented a return of capital previously contributed) were $36 million, $39 million and $169 million in 2010, 2009 and 2008. In 2008, we received a $75 million partial redemption of our partnership interest from PTC that was accounted for as a return of our investment. See Note 5.

13. Property, Plant and Equipment

 

     Estimated    December 31,  

(In millions)

  

Useful Lives

   2010      2009  

Refining & Marketing

   4 - 25 years    $ 13,234       $ 12,723   

Speedway

   4 - 15 years      1,703         1,930   

Pipeline Transportation

   16 - 42 years      1,482         1,490   

Other

   4 - 40 years      205         202   
                    

Total

        16,624         16,345   

Less accumulated depreciation and amortization

        4,900         4,448   
                    

Net property, plant and equipment

      $ 11,724       $ 11,897   
                    

Property, plant and equipment includes gross assets acquired under capital leases of $259 million and $247 million at December 31, 2010 and 2009, with related amounts in accumulated depreciation and amortization of $47 million and $26 million at December 31, 2010 and 2009. Property, plant and equipment includes construction in progress of $1,997 million and $1,639 million at December 31, 2010 and 2009, which primarily relates to refinery projects.

14. Goodwill

Goodwill is tested for impairment on an annual basis or when events or changes in circumstances indicate the fair value of a reporting unit with goodwill has been reduced below the carrying value. We performed our annual impairment tests for 2010 and 2009, and no impairment was required. The fair value of the reporting units exceeded the book value appreciably for each of our reporting units.

The changes in the carrying amount of goodwill for 2010 and 2009 were as follows:

 

(In millions)

   Refining &
Marketing
    Speedway     Pipeline
Transportation
    Total  

2009

        

Beginning balance

   $ 573      $ 131      $ 162      $ 866   

Purchase price adjustment

     4        —          2        6   
                                

Ending balance

   $ 577      $ 131      $ 164      $ 872   
                                

2010

        

Beginning balance

   $ 577      $ 131      $ 164      $ 872   

Dispositions

     (23     (11     (1     (35
                                

Ending balance

   $ 554      $ 120      $ 163      $ 837   
                                

 

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15. Fair Value Measurements

Fair Values – Recurring

The following tables present assets and liabilities accounted for at fair value on a recurring basis as of December 31, 2010 and 2009 by fair value hierarchy level.

 

     December 31, 2010  

(In millions)

   Level 1     Level 2      Level 3     Collateral      Total  

Commodity derivative instruments, assets

   $ 58      $ —         $ 1      $ 78       $ 137   

PFD Preferred Stock

     —          —           2,404        —           2,404   

Other assets

     3        —           —          —           3   
                                          

Total assets at fair value

   $ 61      $ —         $ 2,405      $ 78       $ 2,544   
                                          

Commodity derivative instruments, liabilities

   $ (103   $ —         $ (3   $ —         $ (106
                                          
     December 31, 2009  

(In millions)

   Level 1     Level 2      Level 3     Collateral      Total  

Commodity derivative instruments, assets

   $ 133      $ —         $ 11      $ 6       $ 150   

PFD Preferred Stock

     —          —           864        —           864   

Other assets

     3        —           —          —           3   
                                          

Total assets at fair value

   $ 136      $ —         $ 875      $ 6       $ 1,017   
                                          

Commodity derivative instruments, liabilities

   $ (125   $ —         $ (10   $ —         $ (135
                                          

Commodity derivatives in Level 1 are exchange-traded contracts for crude oil and refined products measured at fair value with a market approach using the close-of-day settlement prices for the market. Collateral deposits related to Level 1 commodity derivatives are in broker accounts covered by master netting agreements.

Commodity derivatives in Level 3 are measured at fair value with a market approach using prices obtained from third-party services such as Platt’s, a Division of McGraw-Hill Corporation, and price assessments from other independent brokers. Since we are unable to independently verify information from the third-party service providers to active markets, all these measures are considered Level 3.

Our investments in related party debt securities, PFD Preferred Stock, are redeemable on any business day at their recorded value. See Note 4. The fair value of related party debt securities is measured using an income approach where the recorded value approximates market value due to the daily redemption feature. Because the related party debt securities are not publicly traded, the projected cash flows are Level 3 inputs.

The following is a reconciliation of the net beginning and ending balances recorded for net assets and liabilities classified as Level 3 in the fair value hierarchy.

 

(In millions)

   2010     2009     2008  

Beginning balance

   $ 865      $ 989      $ 557   

Total realized and unrealized losses included in net income

     (1     (13     (82

Purchases

     9,709        16,755        8,545   

Redemptions

     (8,019     (16,915     (8,064

Settlements

     (2     49        33   

Distributions to parent company (a)

     (150     —          —     
                        

Ending Balance

   $ 2,402      $ 865      $ 989   
                        

 

(a)

Due to the January 1, 2010 merger of two non-operating RM&T Business legal entities into Marathon Oil.

 

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Net income for 2010, 2009 and 2008 included unrealized losses of $1 million, $7 million and $35 million related to Level 3 derivative instruments held as of December 31 of those years. See Note 16 for the income statement impacts of our derivative instruments.

Fair Values – Nonrecurring

The following table shows the values of assets, by major category, measured at fair value on a nonrecurring basis in periods subsequent to their initial recognition.

 

     Year Ended December 31,  
     2010      2009  

(In millions)

   Fair Value      Impairment      Fair Value      Impairment  

Long-lived assets held for sale

   $ 1       $ 29       $ —         $ —     

Equity method investment

     —           —           11         10   

As a result of changing market conditions, a maleic anhydride supply agreement with a major customer was revised in June 2010. An impairment of $29 million was recorded in 2010 for our plant that manufactured maleic anhydride. The plant was operated by our Refining & Marketing segment. The fair value of the plant was measured using a market approach based upon comparable area land values, which are Level 3 inputs.

As a result of declining throughput volumes, we impaired our Pipeline Transportation segment’s equity method investment in Southcap Pipe Line Company, an entity engaged in crude oil transportation, by $10 million in 2009. This investment was determined to have sustained an other-than-temporary loss in value. The fair value was measured using a market approach based upon a third party offer to purchase our interest in the entity, which is a Level 3 input.

Fair Values – Reported

The following table summarizes financial instruments, excluding the PFD Preferred Stock and derivative financial instruments reported above, by individual balance sheet line item at December 31, 2010 and 2009.

 

     December 31,  
     2010      2009  

(In millions)

   Fair Value      Carrying Value      Fair Value      Carrying Value  

Financial assets

           

Other noncurrent assets

   $ 289       $ 126       $ 209       $ 54   
                                   

Total financial assets

   $ 289       $ 126       $ 209       $ 54   
                                   

Financial liabilities

           

Long-term debt payable within one year to parent company and subsidiaries

   $ 655       $ 655       $ —         $ —     

Long-term debt payable to parent company and subsidiaries

     2,908         2,963         2,265         2,358   

Deferred credits and other liabilities

     22         22         20         20   
                                   

Total financial liabilities

   $ 3,585       $ 3,640       $ 2,285       $ 2,378   
                                   

Our current assets and liabilities include financial instruments, the most significant of which are trade accounts receivable and payables. We believe the carrying values of our current assets and liabilities approximate fair value. Our fair value assessment incorporates a variety of considerations, including (1) the short-term duration of the instruments (e.g., less than 1 percent of our trade receivables and payables are outstanding for greater than 90 days), (2) Marathon Oil’s investment-grade credit rating and (3) our historical incurrence of and expected future insignificance of bad debt expense, which includes an evaluation of counterparty credit risk.

 

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Fair values of our financial assets included in other noncurrent assets and of our financial liabilities included in deferred credits and other liabilities are measured using an income approach and most inputs are internally generated, which results in a Level 3 classification. Estimated future cash flows are discounted using a rate deemed appropriate to obtain the fair value.

Debt payable to parent company and subsidiaries includes a revolving credit agreement and a loan as discussed in Note 4. The revolving credit balance is measured using an income approach. The future debt service payments are discounted using the rate at which we currently expect to borrow. All inputs to this calculation are Level 3. The carrying value approximates fair value. Fair value of the loan is measured using a market approach, based upon quotes from major financial institutions for comparable debt. Because these quotes cannot be independently verified to the market, they are considered Level 3 inputs.

16. Derivatives

For further information regarding the fair value measurement of derivative instruments, see Note 15. See Note 2 for discussion of the types of derivatives we use and the reasons for them. We do not designate any of our derivative instruments as hedges for accounting purposes.

The following table presents the gross fair values of derivative instruments, excluding cash collateral, and where they appear on the combined balance sheets as of December 31, 2010 and 2009:

 

     December 31, 2010      

(In millions)

   Asset      Liability      Net Asset     Balance Sheet Location

Commodity derivatives

   $ 58       $ 103       $ (45   Other current assets
     December 31, 2010      

(In millions)

   Asset      Liability      Net Liability     Balance Sheet Location

Commodity derivatives

   $ 1       $ 3       $ 2      Other current liabilities
     December 31, 2009      

(In millions)

   Asset      Liability      Net Asset     Balance Sheet Location

Commodity derivatives

   $ 108       $ 99       $ 9      Other current assets

The tables below summarize open commodity derivative contracts at December 31, 2010 and 2009. These contracts enable us to effectively correlate our commodity price exposure to the relevant market indicators, thereby mitigating price risk.

 

       December 31, 2010  
       Position     Barrels per Day     Weighted Average Price
(Per Barrel)
     Benchmark  

Crude Oil

         

Exchange-traded

     Long (a)       36,608      $ 89.67         CME and IPE Crude (b)  (c)   

Exchange-traded

     Short (a)       (61,485   $ 88.03         CME and IPE Crude (b)  (c)   
     Position     Barrels per Day     Weighted Average Price
(Per Gallon)
     Benchmark  

Refined Products

         

Exchange-traded

     Long (d)       13,008      $ 2.40         CME Heating Oil and  RBOB (b) (e)   

Exchange-traded

     Short (d)       (11,044   $ 2.46         CME Heating Oil and  RBOB (b) (e)   

 

(a)

87 percent of these contracts expire in the first quarter of 2011.

(b)

Chicago Mercantile Exchange (“CME”).

(c)

International Petroleum Exchange (“IPE”).

(d)

98 percent of these contracts expire in the first quarter of 2011.

(e)

Reformulated Gasoline Blendstock for Oxygenate Blending (“RBOB”).

 

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     December 31, 2009  
       Position     Barrels per Day     Weighted Average Price
(Per Barrel)
     Benchmark  

Crude Oil

         

Exchange-traded

     Long (a)       61,677      $ 76.67         CME and IPE Crude (b)  (c)   

Exchange-traded

     Short (a)       (54,395   $ 76.85         CME and IPE Crude (b)  (c)   
     Position     Barrels per Day     Weighted Average Price
(Per Gallon)
     Benchmark  

Refined Products

         

Exchange-traded

     Long (d)       11,773      $ 2.00         CME Heating Oil and  RBOB (b) (e)   

Exchange-traded

     Short (d)       (17,030   $ 2.00         CME Heating Oil and  RBOB (b) (e)   

 

(a)

79 percent of these contracts expired in the first quarter of 2010.

(b)

Chicago Mercantile Exchange (“CME”).

(c)

International Petroleum Exchange (“IPE”).

(d)

97 percent of these contracts expired in the first quarter of 2010.

(e)

Reformulated Gasoline Blendstock for Oxygenate Blending (“RBOB”).

The following table summarizes the effect of all commodity derivative instruments in our combined statements of income:

 

(In millions)

   Gain (Loss)  

Income Statement Location

   2010     2009     2008  

Sales and other operating revenues

   $ (1   $ (13   $ 21   

Cost of revenues

     (28     (70     (108

Other income

     6        11        (2
                        
   $ (23   $ (72   $ (89
                        

17. Supplemental Cash Flow Information

 

(In millions)

   2010      2009      2008  

Net cash provided from operating activities included:

        

Interest paid (net of amounts capitalized)

   $ —         $ 2       $ —     

Income taxes paid to taxing authorities (a)

     11         11         1   

Non-cash investing and financing activities:

        

Capital lease obligations increase

   $ 32       $ 77       $ 78   

Preferred stock received in asset disposition

     80         —           —     

 

(a)

U.S. federal and most state income taxes were paid by Marathon Oil.

The combined statements of cash flows exclude changes to the combined balance sheets that did not affect cash. The following is a reconciliation of additions to property, plant and equipment to total capital expenditures:

 

(In millions)

   2010     2009     2008  

Additions to property, plant and equipment

   $ 1,217      $ 2,891      $ 2,787   

Increase (decrease) in capital accruals

     (51     (312     167   
                        

Capital expenditures

   $ 1,166      $ 2,579      $ 2,954   
                        

 

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The following is a reconciliation of contributions from (distributions to) parent company:

 

(In millions)

   2010     2009     2008  

Contributions from (distributions to) parent company per combined statements of cash flows

   $ (1,330   $ 207      $ (151

Non-cash contributions from (distributions to) parent company

     (118     (158     119   
                        

Contributions from (distributions to) parent company per combined statements of net investment

   $ (1,448   $ 49      $ (32
                        

See Note 4 for information regarding non-cash contributions from (distributions to) Marathon Oil.

18. Defined Benefit Postretirement Plans

We have noncontributory defined benefit pension plans covering substantially all employees. Benefits under these plans have been based primarily on years of service and final average pensionable earnings.

We also have defined benefit plans for other postretirement benefits covering most employees. Health care benefits are provided through comprehensive hospital, surgical and major medical benefit provisions subject to various cost-sharing features. Life insurance benefits are provided to certain nonunion and union-represented retiree beneficiaries. Other postretirement benefits are not funded in advance.

Obligations and funded status – The accumulated benefit obligation for all defined benefit pension plans was $1,611 million and $1,603 million as of December 31, 2010 and 2009.

The following summarizes our defined benefit pension plans that have accumulated benefit obligations in excess of plan assets.

 

(In millions)

   December 31,  
   2010     2009  

Projected benefit obligations

   $ (2,266   $ (2,103

Accumulated benefit obligations

     (1,611     (1,603

Fair value of plan assets

     1,233        1,123   

 

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The following summarizes the obligations and funded status for our defined benefit pension and other postretirement plans:

 

(In millions)

   Pension Benefits     Other Benefits  
   2010     2009     2010     2009  

Change in benefit obligations:

        

Benefit obligations at January 1

   $ 2,103      $ 1,475      $ 400      $ 391   

Service cost

     62        94        14        13   

Interest cost

     105        100        24        24   

Actuarial loss (gain)

     180        525        60        (13

Benefits paid

     (184     (91     (15     (15
                                

Benefit obligations at December 31

     2,266        2,103        483        400   
                                

Change in plan assets:

        

Fair value of plan assets at January 1

     1,123        800        —          —     

Actual return on plan assets

     147        174        —          —     

Employer contributions

     151        236        —          —     

Other

     (4     4        —          —     

Benefits paid from plan assets

     (184     (91     —          —     
                                

Fair value of plan assets at December 31

     1,233        1,123        —          —     
                                

Funded status of plans at December 31

   $ (1,033   $ (980   $ (483   $ (400
                                

Amounts recognized in the combined balance sheet:

        

Current liabilities

   $ (6   $ (8   $ (17   $ (15

Noncurrent liabilities

     (1,027     (972     (466     (385
                                

Accrued benefit cost

   $ (1,033   $ (980   $ (483   $ (400
                                

Pretax amounts recognized in accumulated other comprehensive loss: (a)

        

Net (gain)/loss

   $ 945      $ 882      $ 3      $ (59

Prior service cost

     48        54        —          1   

 

(a)

Amounts exclude those related to LOOP, an equity method investee with defined benefit pension and postretirement plans for which net losses of $9 million and $8 million were recorded in accumulated other comprehensive loss, reflecting our 51 percent share.

 

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Components of net periodic benefit cost and other comprehensive loss – The following summarizes the net periodic benefit costs and the amounts recognized as other comprehensive loss for our defined benefit pension and other postretirement plans.

 

(In millions)

   Pension Benefits     Other Benefits  
   2010     2009     2008     2010     2009     2008  

Components of net periodic benefit cost:

            

Service cost

   $ 62      $ 94      $ 92      $ 14      $ 13      $ 15   

Interest cost

     105        100        92        24        24        24   

Expected return on plan assets

     (95     (94     (94     —          —          —     

Amortization – prior service cost (benefit)

     7        7        7        1        1        (2

                            – actuarial (gain)/loss

     51        9        8        (2     (5     —     

Net settlement loss (a)

     13        —          —          —          —          —     
                                                

Net periodic benefit cost (b)

     143        116        105        37        33        37   
                                                

Other changes in plan assets and benefit obligations recognized in other comprehensive loss (pretax):

            

Actuarial loss (gain)

     129        445        322        61        (13     (30

Amortization of actuarial (loss) gain

     (64     (9     (8     2        5        —     

Amortization of prior service credit (cost)

     (7     (7     (7     (1     (1     2   
                                                

Total recognized in other comprehensive loss

     58        429        307        62        (9     (28
                                                

Total recognized in net periodic benefit cost and other comprehensive loss

   $ 201      $ 545      $ 412      $ 99      $ 24      $ 9   
                                                

 

(a)

A settlement loss was recorded due to lump sum payments exceeding the respective plan’s total service and interest cost expensed in 2010.

(b)

Net periodic benefit cost reflects a calculated market-related value of plan assets which recognizes changes in fair value over three years.

The estimated net loss and prior service cost for our defined benefit pension plans that will be amortized from accumulated other comprehensive loss into net periodic benefit cost in 2011 are $71 million and $6 million. The estimated net gain and prior service cost for our other defined benefit postretirement plans that will be amortized from accumulated other comprehensive loss into net periodic benefit cost in 2011 is less than $1 million.

Plan assumptions – The following summarizes the assumptions used to determine the benefit obligations at December 31, and net periodic benefit cost for the defined benefit pension and other postretirement plans for 2010, 2009 and 2008.

 

       Pension Benefits     Other Benefits  
   2010     2009     2008     2010     2009     2008  

Weighted-average assumptions used to determine benefit obligation:

            

Discount rate

     5.05     5.50     6.90     5.55     5.95     6.85

Rate of compensation increase

     5.00     4.50     4.50     5.00     4.50     4.50

Weighted average assumptions used to determine net periodic benefit cost:

            

Discount rate

     5.23     6.90     6.30     6.85     6.85     6.60

Expected long-term return on plan assets

     8.50     8.50     8.50     —          —          —     

Rate of compensation increase

     4.50     4.50     4.50     4.50     4.50     4.50

 

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Expected long-term return on plan assets

The overall expected long-term return on plan assets assumption is determined based on an asset rate-of-return modeling tool developed by a third-party investment group. The tool utilizes underlying assumptions based on actual returns by asset category and inflation and takes into account our asset allocation to derive an expected long-term rate of return on those assets. Capital market assumptions reflect the long-term capital market outlook. The assumptions for equity and fixed income investments are developed using a building-block approach, reflecting observable inflation information and interest rate information available in the fixed income markets. Long-term assumptions for other asset categories are based on historical results, current market characteristics and the professional judgment of our internal and external investment teams.

Assumed health care cost trend

The following summarizes the assumed health care cost trend rates.

 

       December 31  
   2010     2009     2008  

Health care cost trend rate assumed for the following year:

      

Medical

      

Pre-65

     7.50     7.00     7.00

Post-65

     7.00     6.75     7.00

Prescription drugs

     7.50     7.50     10.00

Rate to which the cost trend rate is assumed to decline (the ultimate trend rate):

      

Medical

      

Pre-65

     5.00     5.00     5.00

Post-65

     5.00     5.00     5.00

Prescription drugs

     5.00     5.00     6.00

Year that the rate reaches the ultimate trend rate:

      

Medical

      

Pre-65

     2018        2014        2012   

Post-65

     2017        2015        2012   

Prescription drugs

     2018        2015        2016   

Assumed health care cost trend rates have a significant effect on the amounts reported for defined benefit retiree health care plans. A one-percentage-point change in assumed health care cost trend rates would have the following effects:

 

(In millions)

   1-Percentage-
Point Increase
     1-Percentage-
Point Decrease
 

Effect on total of service and interest cost components

   $ 7       $ 5   

Effect on other postretirement benefit obligations

     75         61   

Plan investment policies and strategies

The investment policies for our pension plan assets reflect the funded status of the plans and expectations regarding our future ability to make further contributions. Long-term investment goals are to: (1) manage the assets in accordance with the legal requirements of all applicable laws; (2) produce investment returns which meet or exceed the rates of return achievable in the capital markets while maintaining the risk parameters set by the plans’ investment committees and protecting the assets from any erosion of purchasing power; and (3) position the portfolios with a long-term risk/return orientation.

 

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Historical performance and future expectations suggest that common stocks will provide higher total investment returns than fixed income securities over a long-term investment horizon. Short-term investments are utilized for pension payments, expenses and other liquidity needs. As such, the plans’ targeted asset allocation is comprised of 75 percent equity securities and 25 percent fixed income securities.

The plans’ assets are managed by a third-party investment manager. The investment manager has limited discretion to move away from the target allocations based upon the manager’s judgment as to current confidence or concern regarding the capital markets. Investments are diversified by industry and type, limited by grade and maturity. The plans’ investment policy prohibits investments in any securities in the steel industry and allows derivatives subject to strict guidelines, such that derivatives may only be written against equity securities in the portfolio. Investment performance and risk is measured and monitored on an ongoing basis through quarterly investment meetings and periodic asset and liability studies.

Fair value measurements

Plan assets are measured at fair value. The following provides a description of the valuation techniques employed for each major plan asset category at December 31, 2010 and 2009.

Cash and cash equivalents – Cash and cash equivalents include cash on deposit and an investment in a money market mutual fund that invests mainly in short-term instruments and cash, both of which are valued using a market approach and are considered Level 1 in the fair value hierarchy. The money market mutual fund is valued at the net asset value (“NAV”) of shares held.

Equity securities – Investments in public investment trusts and S&P 500 exchange-traded funds are valued using a market approach at the closing price reported in an active market and are therefore considered Level 1. Non-public investment trusts are valued using a market approach based on the underlying investments in the trust, which are publicly traded securities, and are considered Level 2. Private equity investments include interests in limited partnerships which are valued based on the sum of the estimated fair values of the investments held by each partnership, determined using a combination of market, income and cost approaches, plus working capital, adjusted for liabilities, currency translation and estimated performance incentives. These private equity investments are considered Level 3.

Pooled funds – Investments in pooled funds are valued using a market approach at the NAV of units held, but investment opportunities in such funds are limited to institutional investors on the behalf of defined benefit plans. The various funds consist of either an equity or fixed income investment portfolio with underlying investments held in U.S. and non-U.S. securities. Nearly all of the underlying investments are publicly traded. These investments are considered Level 2.

Real estate – Real estate investments are valued based on discounted cash flows, comparable sales, outside appraisals, price per square foot or some combination thereof and therefore are considered Level 3.

Other – Other investments include investments in two limited liability companies (“LLCs”) with no public market. The LLCs were formed to acquire acres of timberland in the northwest United States and other properties. The values of the LLCs are determined using an income approach based on discounted cash flows and are considered Level 3.

 

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The following tables present the fair values of our defined benefit pension plans’ assets, by level within the fair value hierarchy, as of December 31, 2010 and 2009.

 

     December 31, 2010  

(In millions)

   Level 1      Level 2     Level 3      Total  

Cash and cash equivalents

   $ 6       $ —        $ —         $ 6   

Equity securities:

          

Investment trusts

     17         94        —           111   

Exchange-traded funds

     38         —          —           38   

Private equity

     —           —          46         46   

Investment funds

          

Pooled funds – equity (a)

     —           738        —           738   

Pooled funds – fixed income (b)

     —           240        —           240   

Real estate (c)

     —           —          37         37   

Other

     —           —          17         17   
                                  

Total investments, at fair value

   $ 61       $ 1,072      $ 100       $ 1,233   
                                  
     December 31, 2009  

(In millions)

   Level 1      Level 2     Level 3      Total  

Cash and cash equivalents

   $ 8       $ —        $ —         $ 8   

Equity securities:

          

Investment trusts

     15         79        —           94   

Exchange-traded funds

     18         —          —           18   

Private equity

     —           —          29         29   

Investment funds

          

Pooled funds – equity (a)

     —           647        —           647   

Pooled funds – fixed income (b)

     —           227        —           227   

Real estate (c)

     —           —          25         25   

Other

     —           59 (d)       16         75   
                                  

Total investments, at fair value

   $ 41       $ 1,012      $ 70       $ 1,123   
                                  

 

(a)

Includes approximately 70 percent of investments held in U.S. and non-U.S. publicly traded common stocks in the consumer staples, consumer discretionary, technology, health and energy sectors and the remaining 30 percent of investments held amongst various other sectors.

(b)

Includes approximately 80 percent of investments held in U.S. and non-U.S. publicly traded investment grade government and corporate bonds which include treasuries, mortgage-backed securities and industrials, and the remaining 20 percent of investments held amongst various other sectors.

(c)

Includes investments diversified by property type and location. The largest property sector holdings, which represent approximately 70 percent of investments held, are office, hotel, residential and land with the greatest percentage of investments made in the U.S. and Asia, which includes the emerging markets of China and India.

(d)

Includes a $59 million receivable for the sale of an investment that closed as of December 31, 2009, but did not cash settle until the next business day.

 

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The following is a reconciliation of the beginning and ending balances recorded for plan assets classified as Level 3 in the fair value hierarchy:

 

     2010  

(In millions)

   Private
Equity
    Real
Estate
    Other      Total  

Beginning balance

   $ 29      $ 25      $ 16       $ 70   

Actual return on plan assets

     9        3        1         13   

Purchases

     10        11        —           21   

Sales

     (2     (2     —           (4
                                 

Ending balance

   $ 46      $ 37      $ 17       $ 100   
                                 

 

     2009  

(In millions)

   Private
Equity
    Real
Estate
    Other     Total  

Beginning balance

   $ 23      $ 27      $ 5      $ 55   

Actual return on plan assets

     2        (8     (1     (7

Purchases

     5        8        12        25   

Sales

     (1     (2     —          (3
                                

Ending balance

   $ 29      $ 25      $ 16      $ 70   
                                

Cash Flows

Contributions to defined benefit plans – We expect to make contributions to the funded pension plans of up to $102 million in 2011. Cash contributions to be paid from our general assets for the unfunded pension and postretirement plans are expected to be approximately $6 million and $18 million in 2011.

Estimated future benefit payments – The following gross benefit payments, which reflect expected future service, as appropriate, are expected to be paid in the years indicated.

 

(In millions)

   Pension Benefits      Other Benefits  (a)  

2011

   $ 167       $ 18   

2012

     189         20   

2013

     195         22   

2014

     203         25   

2015

     207         28   

2016 through 2020

     1,080         180   

 

(a)

Expected Medicare reimbursements for 2011 through 2020 total $22 million. Effective 2013, as a result of the PPACA, future Medicare reimbursements will no longer be tax deductible and must be used to reduce the costs of providing Medicare Part D equivalent prescription drug benefits to retirees.

Contributions to defined contribution plans – We also contribute to several defined contribution plans for eligible employees. Contributions to these plans totaled $54 million, $40 million and $38 million in 2010, 2009 and 2008.

19. Stock-Based Compensation Plans

Description of the Plans

The Marathon Oil Corporation 2007 Incentive Compensation Plan (the “2007 Plan”) was approved by the Marathon Oil stockholders in April 2007 and authorizes the Compensation Committee of the Marathon Oil Board of Directors to grant stock options, stock appreciation rights, stock awards (including restricted stock and

 

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restricted stock unit awards) and performance awards to employees, which includes RM&T Business employees. No more than 34 million shares of Marathon Oil common stock may be issued under the 2007 Plan and no more than 12 million of those shares may be used for awards other than stock options or stock appreciation rights.

Shares subject to awards under the 2007 Plan that are forfeited, are terminated or expire unexercised become available for future grants. If a stock appreciation right is settled upon exercise by delivery of shares of common stock, the full number of shares with respect to which the stock appreciation right was exercised will count against the number of shares of Marathon Oil common stock reserved for issuance under the 2007 Plan and will not again become available under the 2007 Plan. In addition, the number of shares of Marathon Oil common stock reserved for issuance under the 2007 Plan will not be increased by shares tendered to satisfy the purchase price of an award, exchanged for other awards or withheld to satisfy tax-withholding obligations. Shares issued as a result of awards granted under the 2007 Plan are generally funded out of common stock held in treasury, except to the extent there are insufficient treasury shares, in which case new common shares are issued.

After approval of the 2007 Plan, no new grants were or will be made from the 2003 Incentive Compensation Plan (the “2003 Plan”). The 2003 Plan replaced the 1990 Stock Plan, the Non-Officer Restricted Stock Plan, the Non-Employee Director Stock Plan, the deferred stock benefit provision of the Deferred Compensation Plan for Non-Employee Directors, the Senior Executive Officer Annual Incentive Compensation Plan and the Annual Incentive Compensation Plan (the “Prior Plans”). No new grants will be made from the Prior Plans. Any awards previously granted under the 2003 Plan or the Prior Plans shall continue to vest or be exercisable in accordance with their original terms and conditions.

The following disclosures relate to Marathon Oil stock-based awards granted to our employees.

Stock-based awards under the Plan

Stock options – Marathon Oil grants stock options under the 2007 Plan. Stock options represent the right to purchase shares of Marathon Oil common stock at its fair market value on the date of grant. Through 2004, certain stock options were granted under the 2003 Plan with a tandem stock appreciation right, which allows the recipient to instead elect to receive cash or Marathon Oil common stock equal to the excess of the fair market value of shares of common stock, as determined in accordance with the 2003 Plan, over the option price of the shares. In general, stock options granted under the 2007 Plan and the 2003 Plan vest ratably over a three-year period and have a maximum term of ten years from the date they are granted.

Stock appreciation rights – Prior to 2005, Marathon Oil granted stock appreciation rights (“SARs”) under the 2003 Plan. No stock appreciation rights have been granted under the 2007 Plan. Similar to stock options, stock appreciation rights represent the right to receive a payment equal to the excess of the fair market value of shares of common stock on the date the right is exercised over the grant price. Under the 2003 Plan, SARs were granted as stock-settled awards. In general, SARs granted under the 2003 Plan vest ratably over a three-year period and have a maximum term of ten years from the date they are granted.

Restricted stock – Marathon Oil grants restricted stock under the 2007 Plan and previously granted such awards under the 2003 Plan. In 2005, the Marathon Oil Compensation Committee began granting time-based restricted stock to certain U.S.-based officers of Marathon Oil and its consolidated subsidiaries as part of their annual long-term incentive package. The restricted stock awards to officers vest three years from the date of grant, contingent on the recipient’s continued employment. Marathon Oil also grants restricted stock to certain non-officer employees (“restricted stock awards”), based on their performance within certain guidelines and for retention purposes. The restricted stock awards to non-officers generally vest in one-third increments over a three-year period, contingent on the recipient’s continued employment, however, certain restricted stock awards granted in 2008 will vest over a four-year period, contingent on the recipient’s continued employment. Prior to vesting, all restricted stock recipients have the right to vote such stock and receive dividends thereon. The non-vested shares are not transferable and are held by Marathon Oil’s transfer agent.

 

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Total stock-based compensation expense

Total employee stock-based compensation expense was $16 million, $18 million and $16 million in 2010, 2009 and 2008, while the total related income tax benefits were $6 million, $7 million and $6 million in the same years. In 2010, 2009 and 2008, cash received by Marathon Oil upon exercise of stock option awards was $5 million, $2 million and $2 million. Tax benefits realized for deductions for stock awards exercised during 2010, 2009 and 2008 totaled $1 million for each of these years.

Stock option awards

During 2010, 2009, and 2008, Marathon Oil granted stock option awards to both officer and non-officer employees of the RM&T Business. The weighted average grant date fair value of these awards was based on the following Black-Scholes assumptions:

 

     2010     2009     2008  

Weighted average exercise price per share

   $ 30.12      $ 28.09      $ 51.78   

Expected annual dividends per share

   $ 0.97      $ 0.96      $ 0.96   

Expected life in years

     5.1        4.9        4.8   

Expected volatility

     41     41     30

Risk-free interest rate

     2.2     2.3     3.1

Weighted average grant date fair value of stock option awards granted

   $ 8.72      $ 7.87      $ 13.10   

The following is a summary of stock option award activity in 2010.

 

     Number
of Shares
    Weighted-Average
Exercise Price
 

Outstanding at December 31, 2009

     6,046,834      $ 35.84   

Granted

     1,605,990        30.12   

Exercised

     (218,355     17.96   

Canceled

     (117,340     37.80   
          

Outstanding at December 31, 2010

     7,317,129        34.97   
          

The intrinsic value of stock option awards exercised during 2010, 2009 and 2008 was $2 million, $1 million and $3 million.

The following table presents information related to stock option awards at December 31, 2010.

 

     Outstanding      Exercisable  

Range of
Exercise Prices

   Number
of Shares
Under Option
     Weighted-
Average
Remaining
Contractual
Life
     Weighted-
Average
Exercise Price
     Number
of Shares
Under Option
     Weighted-
Average
Exercise Price
 

$ 12.76-16.81

     819,646         3       $ 16.07         819,646       $ 16.07   

   23.82-29.24

     2,557,912         7         27.34         1,323,205         26.29   

   30.37-46.41

     2,213,858         8         33.57         950,700         37.82   

   51.17-61.33

     1,725,713         7         57.05         1,494,177         57.88   
                          

Total

     7,317,129         7         34.97         4,587,728         37.14   
                          

 

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As of December 31, 2010, the aggregate intrinsic value of stock option awards outstanding was $50 million. The aggregate intrinsic value and weighted average remaining contractual life of stock option awards currently exercisable were $31 million and 6 years.

As of December 31, 2010, the number of fully-vested stock option awards and stock option awards expected to vest was 7,145,493. The weighted average exercise price and weighted average remaining contractual life of these stock option awards were $35.08 and 7 years and the aggregate intrinsic value was $49 million. As of December 31, 2010, unrecognized compensation cost related to stock option awards was $14 million, which is expected to be recognized over a weighted average period of 1.9 years.

Restricted stock awards

The following is a summary of restricted stock award activity.

 

     Awards     Weighted-Average
Grant Date Fair Value
 

Unvested at December 31, 2009

     223,955      $ 43.11   

Granted

     105,123        30.56   

Vested

     (95,443     53.85   

Forfeited

     (29,863     33.40   
          

Unvested at December 31, 2010

     203,772        33.03   
          

The vesting date fair value of restricted stock awards, which vested during 2010, 2009 and 2008, was $3 million, $3 million and $4 million. The weighted average grant date fair value of restricted stock awards was $33.03, $43.11 and $50.03 for awards unvested at December 31, 2010, 2009 and 2008.

As of December 31, 2010, there was $3 million of unrecognized compensation cost related to restricted stock awards, which is expected to be recognized over a weighted average period of 1.5 years.

20. Leases

We lease a wide variety of facilities and equipment under operating leases, including land and building space, office equipment, storage facilities and transportation equipment. Most long-term leases include renewal options and, in certain leases, purchase options. Future minimum commitments as of December 31, 2010, for capital lease obligations (including sale-leasebacks accounted for as financings) and for operating lease obligations having initial or remaining noncancelable lease terms in excess of one year are as follows:

 

(In millions)

   Capital
Lease
Obligations (a)
    Operating
Lease
Obligations
 

2011

   $ 24      $ 110   

2012

     36        121   

2013

     43        115   

2014

     43        106   

2015

     44        98   

Later years

     396        184   
                

Total minimum lease payments

     586      $ 734   
          

Less imputed interest costs

     (216  
          

Present value of net minimum lease payments

   $ 370     
          

 

(a)

Capital lease obligations include $164 million related to assets under construction as of December 31, 2010. These leases are currently reported as long-term debt based on the percentage of construction completed at $73 million.

 

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Capital lease obligations reported as long-term debt on the combined balance sheets include:

 

     December 31,  

(In millions)

   2010     2009  

Capital lease obligations due 2011 – 2024 (a)(b)

   $ 279      $ 254   

Amounts due within one year

     (11     (11
                

Capital lease obligations due after one year

   $ 268      $ 243   
                

 

(a)

These obligations as of December 31, 2010 include $73 million related to assets under construction at that date for which a capital lease will commence upon completion of construction. The amounts currently reported are based upon the percent of construction completed as of December 31, 2010 and therefore do not reflect future lease obligations of $164 million related to the assets.

(b)

Capital lease obligations due for the years 2011 – 2015 are $11 million, $14 million, $15 million, $17 million and $19 million.

Operating lease rental expense was:

 

(In millions)

   2010      2009      2008  

Minimum rental

   $ 164       $ 133       $ 146   

Contingent rental

     22         19         22   
                          

Rental expense

   $ 186       $ 152       $ 168   
                          

21. Commitments & Contingencies

We are the subject of, or a party to, a number of pending or threatened legal actions, contingencies and commitments involving a variety of matters, including laws and regulations relating to the environment. Some of these matters are discussed below. The ultimate resolution of these contingencies could, individually or in the aggregate, be material. However, we believe that our company will remain a viable and competitive enterprise even though it is possible that some or all of these contingencies could be resolved unfavorably.

Environmental matters – We are subject to federal, state, local and foreign laws and regulations relating to the environment. These laws generally provide for control of pollutants released into the environment and require responsible parties to undertake remediation of hazardous waste disposal sites and certain other locations including presently or formerly owned or operated retail marketing sites. Penalties may be imposed for noncompliance. As of December 31, 2010 and 2009, we were not subject to any pending proceeding brought by any governmental authority relating to any of those disposal sites or other locations and involving any monetary fine, penalty or sanction.

At December 31, 2010 and 2009, accrued liabilities for remediation totaled $116 million and $112 million. It is not presently possible to estimate the ultimate amount of all remediation costs that might be incurred or the penalties if any that may be imposed. Receivables for recoverable costs from certain states, under programs to assist companies in clean-up efforts related to underground storage tanks at presently or formerly owned or operated retail marketing sites, were $56 million and $59 million at December 31, 2010 and 2009.

Lawsuits – We, along with other refining and marketing companies, settled a number of lawsuits pertaining to gasoline containing methyl tertiary-butyl ether (“MTBE”) in 2008. We settled additional MTBE-related lawsuits in 2009 and 2010. As of December 31, 2010, we are a defendant, along with other refining and marketing companies, in seven lawsuits pending in five states, in which the plaintiffs seek to recover damages alleged to result from MTBE contamination. Like the lawsuits that we previously settled, these lawsuits are consolidated in a multi-district litigation (“MDL”) in the Southern District of New York for pretrial proceedings. Plaintiffs allege damages to water supply wells from contamination of groundwater by MTBE, similar to the damages claimed in

 

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the lawsuits previously settled. In addition, in one of the lawsuits the New Jersey Department of Environmental Protection also seeks to recover the cost of remediating MTBE contamination of ground and surface water not being used for public water supply purposes, as well as natural resources damages allegedly resulting from such contamination. We are vigorously defending these lawsuits. We do not expect our share of liability for these cases to significantly impact our combined results of operations, financial position or cash flows. We expect additional lawsuits alleging similar damages against us in the future, but likewise do not expect them individually or in total to materially impact our combined results of operations, financial position or cash flows, based on our experience and amounts paid in connection with other MTBE lawsuits. However, the ultimate outcome of the pending or future MTBE lawsuits, including any financial effect on us, remains uncertain. The pending cases are in various phases of discovery, and our management does not believe an estimate of a reasonably possible loss (or range of loss) can be made for these lawsuits and future lawsuits at this time. We voluntarily discontinued distributing MTBE containing gasoline in 2002.

In May 2007, the Kentucky Attorney General filed a lawsuit against us and Marathon Oil in state court in Franklin County, Kentucky for alleged violations of Kentucky’s emergency pricing and consumer protection laws following Hurricanes Katrina and Rita in 2005. The lawsuit alleges that we overcharged customers by $89 million during September and October 2005. The complaint seeks disgorgement of these sums, as well as penalties, under Kentucky’s emergency pricing and consumer protection laws. We believe we have viable defenses and are vigorously defending this lawsuit. If it is resolved unfavorably, it could materially impact our combined results of operations, financial position or cash flows. We believe that this is the first lawsuit for damages and injunctive relief under the Kentucky emergency pricing laws to progress this far, and it contains many novel issues. The ultimate outcome of this lawsuit, including any financial effect on us, remains uncertain. Management does not believe an estimate of a reasonably possible loss (or range of loss) can be made for this lawsuit at this time.

We are also defendant in a number of other lawsuits arising in the ordinary course of business, including, but not limited to, contract claims and environmental claims. While the ultimate outcome and impact to us cannot be predicted with certainty, we believe that the resolution of these proceedings will not have a material adverse effect on our combined financial position, results of operations or cash flows.

Guarantees – We have provided certain guarantees, direct and indirect, of the indebtedness of other companies. Under the terms of most of these guarantee arrangements, we would be required to perform should the guaranteed party fail to fulfill its obligations under the specified arrangements. In addition to these financial guarantees, we also have various performance guarantees related to specific agreements.

Guarantees related to indebtedness of equity method investees – We hold interests in an offshore oil port, LOOP, and a crude oil pipeline system, LOCAP LLC. Both LOOP and LOCAP LLC have secured various project financings with throughput and deficiency agreements. Under the agreements, we are required to advance funds if the investees are unable to service their debt. Any such advances are considered prepayments of future transportation charges. The terms of the agreements vary but tend to follow the terms of the underlying debt. Our maximum potential undiscounted payments under these agreements totaled $172 million as of December 31, 2010.

We hold an interest in a refined products pipeline through our investment in Centennial, and have guaranteed the repayment of Centennial’s outstanding balance under a Master Shelf Agreement, which is scheduled to expire in 2024. The guarantee arose in order for Centennial to obtain adequate financing. Our maximum potential undiscounted payments under this agreement totaled $55 million as of December 31, 2010.

Other guarantees – We have entered into other guarantees with maximum potential undiscounted payments totaling $109 million as of December 31, 2010, which consist of a commitment to contribute cash to an equity method investee for certain catastrophic events, up to $50 million per event, in lieu of procuring insurance coverage, a legal indemnification, and leases of RM&T Business assets containing general lease indemnities and guaranteed residual values.

 

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General guarantees associated with dispositions – Over the years, we have sold various assets in the normal course of our business. Certain of the related agreements contain performance and general guarantees, including guarantees regarding inaccuracies in representations, warranties, covenants and agreements, and environmental and general indemnifications that require us to perform upon the occurrence of a triggering event or condition. These guarantees and indemnifications are part of the normal course of selling assets. We are typically not able to calculate the maximum potential amount of future payments that could be made under such contractual provisions because of the variability inherent in the guarantees and indemnities. Most often, the nature of the guarantees and indemnities is such that there is no appropriate method for quantifying the exposure because the underlying triggering event has little or no past experience upon which a reasonable prediction of the outcome can be based.

Contractual commitments – At December 31, 2010 and 2009, our contractual commitments to acquire property, plant and equipment totaled $768 million and $1,172 million.

22. Subsequent Events (Unaudited)

On February 1, 2011, MPC, currently a wholly owned subsidiary of Marathon Oil, completed a private placement of three series of Senior Notes aggregating $3 billion (the “Notes”). The following table shows the aggregate principal amount of each of the three series of Senior Notes.

 

(In millions)

      

3.500% notes due March 1, 2016

   $ 750   

5.125% notes due March 1, 2021

     1,000   

6.500% notes due March 1, 2041

     1,250   
        
   $ 3,000   
        

The Notes are intended to establish a minimum $750 million initial cash balance for MPC upon completion of the Spin-Off and replace existing debt payable to the Marathon Oil Companies, and any remaining proceeds will be distributed to the Marathon Oil Companies on or before June 30, 2011. The Notes are unsecured and unsubordinated obligations of MPC which are guaranteed by Marathon Oil on a senior unsecured basis. Marathon Oil’s guarantees will terminate upon completion of the Spin-Off.

The holders of the Notes are entitled to the benefits of a registration rights agreement. Within 360 days after the issuance of the Notes, MPC and Marathon Oil will be obligated to use commercially reasonable efforts to file a registration statement with respect to a registered exchange offer to exchange the Notes for new notes that are guaranteed by Marathon Oil, if applicable, with terms substantially identical in all material respects to the Notes. Alternatively, if the exchange offer cannot be completed, MPC and Marathon Oil will be required to file a shelf registration statement to cover resale of the Notes under the Securities Act of 1933. If MPC and Marathon Oil do not comply with these obligations, we will be required to pay additional interest on the Notes. The additional interest will accrue on the principal amount of the Notes at a rate of 0.25 per annum, which rate would be increased by an additional 0.25 percent per annum for each subsequent 90-day period that such additional interest continues to accrue, provided that the rate at which such additional interest accrues may not exceed one percent per annum. Marathon Oil’s obligations under the registration rights agreement will terminate upon termination of the Marathon Oil guarantees in connection with the completion of the Spin-Off, at which point MPC will be solely responsible for the obligations under the registration rights agreement.

To provide additional liquidity following the Spin-Off, MPC entered into a four-year revolving credit agreement dated as of March 11, 2011, (the “Credit Agreement”) with a syndicate of lenders. Under the Credit Agreement, upon the consummation of the Spin-Off and the satisfaction of certain other conditions, MPC will have an initial borrowing capacity of up to $2.0 billion. MPC has the right to seek an increase of the total amount available under the Credit Agreement to $2.5 billion, subject to certain conditions. MPC may obtain up to $1.5 billion of

 

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letters of credit and up to $100 million of swingline loans under the Credit Agreement. MPC may, subject to certain conditions, request that the term of the Credit Agreement be extended for up to two additional one-year periods. Each such extension would be subject to the approval of lenders holding greater than 50 percent of the commitments then outstanding, and the commitment of any lender that does not consent to an extension of the maturity date will be terminated on the then-effective maturity date.

The Credit Agreement contains covenants that MPC considers usual and customary for an agreement of this type, including a maximum ratio of consolidated indebtedness to Consolidated EBITDA (as defined in the Credit Agreement) of 3.0 to 1.0 and a minimum ratio of Consolidated EBITDA to consolidated interest expense of 3.5 to 1.0. In addition, the Credit Agreement includes limitations on indebtedness of MPC’s subsidiaries, other than subsidiaries that guarantee MPC’s obligations under the Credit Agreement. Borrowings under the Credit Agreement are subject to acceleration upon the occurrence of events of default that MPC considers usual and customary for an agreement of this type.

Borrowings of revolving loans under the Credit Agreement bear interest, at MPC’s option, at either (i) the sum of the Adjusted LIBO Rate (as defined in the Credit Agreement), plus a margin ranging between 1.75 percent to 3.00 percent, depending on MPC’s credit ratings, or (ii) the sum of the Alternate Base Rate (as defined in the Credit Agreement), plus a margin ranging between 0.75 percent to 2.00 percent, depending on MPC’s credit ratings. The Credit Agreement also provides for customary fees, including administrative agent fees, commitment fees, fees in respect of letters of credit and other fees.

 

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Supplementary Statistics (Unaudited)

 

(In millions)

   2010     2009     2008  

Segment Income from Operations

      

Refining & Marketing

   $ 800      $ 452      $ 1,377   

Speedway

     293        212        284   

Pipeline Transportation

     183        172        183   
                        

Segment income from operations

     1,276        836        1,844   

Items not allocated to segments

     (265     (182     11   
                        

Income from operations

   $ 1,011      $ 654      $ 1,855   
                        

Capital Expenditures (a)

      

Refining & Marketing

   $ 1,060      $ 2,468      $ 2,761   

Speedway

     84        49        62   

Pipeline Transportation

     21        58        131   

Other

     1        4        —     
                        

Total

   $ 1,166      $ 2,579      $ 2,954   
                        

 

(a)

Capital expenditures include capital accruals.

 

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Table of Contents

Supplementary Statistics (Unaudited)

 

     2010      2009      2008  

RM&T Business Refined Product Sales Volumes (thousands of barrels per day) (a)

     1,585         1,378         1,352   

Refining & Marketing Operating Statistics

        

Refinery Runs (thousands of barrels per day)

        

Crude oil refined

     1,173         957         944   

Other charge and blend stocks

     162         196         207   
                          

Total

     1,335         1,153         1,151   
                          

Refined Product Yields (thousands of barrels per day)

        

Gasoline

     726         669         609   

Distillates

     409         326         342   

Propane

     24         23         22   

Feedstocks and special products

     97         62         96   

Heavy fuel oil

     24         24         24   

Asphalt

     76         66         75   
                          

Total

     1,356         1,170         1,168   
                          

Refining and Marketing Sales Volumes (thousands of barrels per day) (b)

     1,573         1,365         1,339   

Refining and Marketing Gross Margin (dollars per gallon) (c)

   $ 0.0677       $ 0.0577       $ 0.1114   

Speedway Operating Statistics

        

Retail outlets at period-end

     1,358         1,603         1,617   

Gasoline & distillates sales (millions of gallons)

     3,300         3,232         3,215   

Gasoline & distillates gross margin (dollars per gallon) (d)

   $ 0.1207       $ 0.1030       $ 0.1350   

Merchandise sales (in millions)

   $ 3,195       $ 3,109       $ 2,838   

Merchandise gross margin (in millions)

   $ 789       $ 775       $ 716   

Pipeline Transportation Operating Statistics

        

Pipeline Barrels Handled (thousands of barrels per day) (e)

        

Crude oil trunk lines (f)

     1,204         1,113         1,216   

Refined products trunk lines

     968         953         960   
                          

Total

     2,172         2,066         2,176   
                          

 

( a)

Total average daily volumes of refined product sales to wholesale, branded and retail (Speedway segment) customers.

(b)

Includes intersegment sales.

(c)

Sales revenue less cost of refinery inputs, purchased products and manufacturing expenses, including depreciation.

(d)

Effective in the fourth quarter 2010, bank card processing fees incurred by the Speedway segment have been included as a cost in the calculation of the gasoline and distillate gross margin. All periods presented have been restated to reflect that classification.

(e)

On owned common carrier pipelines, excluding equity method investments.

(f)

For all periods presented, excludes volumes transported on a crude oil system that was transferred from common carrier to private service in the fourth quarter 2009.

 

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