AMENDMENT
TO AGREEMENT AND PLAN OF
REORGANIZATION
OF
ENSTAR CORPORATION
This Amendment to Agreement and Plan of
Reorganization of ENSTAR
Corporation (the "Amendment") is made and entered into as of May
1, 1990, among
Unimar Company, a Texas general partnership ("Unimar"),
Ultrastar, Inc., a
Delaware corporation ("Ultrastar"), Unistar, Inc., a Delaware
corporation
("Unistar"), ENSTAR Corporation, a Delaware corporation
("ENSTAR"), Ultramar
Production Company, a Delaware corporation ("UPC"), Union Texas
Development
Corporation, a Delaware corporation ("UT Development"), Union
Texas Petroleum
Corporation, a Delaware corporation ("UTPC") and Ultramar America
Limited, a
Delaware corporation ("Ultramar") and amends the Agreement and
Plan of
Reorganization of ENSTAR Corporation, dated December 22, 1989
(the
"Agreement"), among Unimar, Ultrastar, Unistar, ENSTAR, Ultramar
Production, UT
Development, UTPC and Ultramar (collectively, the "Parties").
W I T N E S S E T H :
WHEREAS, the Parties entered into the Agreement to
provide for
the Reorganization;
WHEREAS, Section 5.1(e) of the Agreement provides
that the
receipt of a favorable IRS Ruling by Unimar and ENSTAR is a
condition to the
obligation of the Parties to consummate the Reorganization;
WHEREAS, based on advice from the IRS, ENSTAR has
withdrawn its
request for a favorable IRS Ruling regarding the application of
Section 355 of
the Code to the Reorganization;
WHEREAS, the Parties desire to waive the receipt of
a favorable
IRS Ruling as a condition to the consummation of the
Reorganization; and
WHEREAS, the Parties desire to amend the Agreement
to reflect
their agreement as to the foregoing and certain other matters;
NOW, THEREFORE, in consideration of and subject to
the mutual
agreements, terms and conditions herein contained, the Parties
hereby agree as
follows:
1. Amendment to Section 1.1. Section 1.1 of
the Agreement is
hereby amended by the addition of the following
subparagraphs (c) and
(d) after subparagraph (b):
"(c) ENSTAR shall transfer to UT Development all
right, title
and interest of Enstar in and to any and all
accounts
receivable attributable to the UT Assets;
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"(d) ENSTAR shall transfer to UPC all right, title
and interest
of ENSTAR in and to any and all accounts
receivable
attributable to the UPC Assets."
2. Amendment to Section 2.2. Section 2.2 of
the Agreement
is hereby amended by the addition of the following
subparagraph (xii)
after subparagraph (xi):
(xii) the Fee Agreement, in substantially the form
attached
hereto as Exhibit P, providing for the payment of
certain fees
and expenses of UTPC and Ultramar."
3. Section 4.1 of the Agreement is hereby
amended in its
entirety to read as follows:
"Section 4.1. IRS Covenant. From the date
hereof, each
of the parties to this Agreement covenants and
agrees that it
will fully comply with the requirements,
representations and
conditions that were set forth in the IRS Request
and the
statutory basis for such Request for so long as
necessary in
order for the Reorganization to qualify as a
distribution to
which Section 355 of the Code applies."
4. Execution of Amended and Restated
Partnership Agreement.
If, on or before the Closing Date, Ultrastar and Unistar
shall have
executed an Amended and Restated Agreement of General
Partnership of
Unimar Company, the Parties shall be deemed to
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have waived the requirement under Section 5.1(b) of the
Agreement that
Ultrastar and Unistar (i) shall have performed all
obligations and
agreements and complied with all covenants and conditions
applicable to
Ultrastar and Unistar contained in the Partnership
Amendment and (ii)
shall have executed and delivered the Partnership
Amendment prior to or
on the Closing Date.
5. Waiver of Execution of Discharge Agreement.
If, on or
before the Closing Date, the Discharge Agreement shall not
have been
executed by all the parties thereto, the parties shall be
deemed to have
waived the requirement under Section 5.1(b) of the
Agreement that each
of the Parties (i) shall have performed all obligations
and agreements
and complied with all covenants and conditions applicable
to it
contained in the Discharge Agreement and (ii) shall have
executed and
delivered the Discharge Agreement prior to or on the
Closing Date.
6. Waiver of IRS Ruling. The Parties hereby
waive the
requirement under Section 5.1(e) of the Agreement that the
receipt of a
favorable IRS Ruling by Unistar and Ultrastar is a
condition to the
closing of the Reorganization.
7. Amendment to Section 9.7. Section 9.7 of
the Agreement is
hereby amended by (i) substituting the term "Fee
Agreement" for
"Partnership Agreement" in the first
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sentence of paragraph (a) and for "Unimar Partnership
Agreement" in the
first sentence of paragraph (g) and (ii) the addition of
the following
paragraph (h) after paragraph (g):
"(h) Any receivable which relates to the period prior
to the
Valuation Date and is described in the Closing Period
Adjustment
Statement (other than receivables in respect of
indebtedness owing
by the Partnerships to ENSTAR) which (i) has been
assigned to
UT Development or UPC pursuant to the terms of this
Agreement and
the Conveyances and (ii) has not been paid in accordance
with
its terms, shall be payable by ENSTAR to UT Development
or UPC,
as the case may be. The amount of any such receivable
shall
be paid within 30 days following receipt by ENSTAR of
notice of
non-payment, which notice must be received by ENSTAR
within
one year from the Closing Date. The non-submitting party
shall
have the right to audit receivable claims submitted to
ENSTAR
for a period of 90 days following receipt by ENSTAR of
such
notice of non-payment."
8. Amendment to Section 9.8. Section 9.8 of
the Agreement
is hereby amended by (i) deleting paragraphs (a) and (b)
and
substituting the following:
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"(a) After the Closing, ENSTAR, UPC and UT
Development shall,
immediately upon their receipt, turn over or cause to be
turned
over to UPC, UT Development or their affiliates, as the
case may be,
any amounts from or related to the Transferred Assets
received by
ENSTAR, UPC, UT Development or their affiliates, which
amounts are
accounted for in the Closing Period Adjustment Statements
and have
not been previously turned over in accordance with the
Closing
Period Adjustment Statements.
(b) After the Closing, ENSTAR, UPC and UT
Development shall,
immediately upon their receipt, turn over or cause to be
turned over
to UPC, UT Development or their affiliates, as the case
may be, any
invoices or any other demand for payment for costs and
expenses that
were incurred as costs for operation or ownership of or
expenses
related to the Transferred Assets during the Closing
Period and which
are accounted for in the Closing Period Adjustment
Statements and
have not previously been turned over in accordance with
the Closing
Period Adjustment Statements."
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and (ii) the addition of the following paragraph after
paragraph (c):
"(d) After the Closing, UPC and UT Development shall,
immediately
upon their receipt, turn over or cause to be turned over
to ENSTAR all
amounts that were not, and should not properly be,
included in the
Closing Period Adjustment Statements, which amounts
relate to a
period prior to the Valuation Date."
9. Closing Date. The Parties hereby agree that
the
preliminary closing of the Reorganization shall be held on
April 30,
1990 at 1:00 p.m., Houston, Texas time at the offices of
Andrews & Kurth
and the closing of the Reorganization shall be held on May
1, 1990 (the
"Closing Date") at 9:00 a.m., Houston, Texas, time at the
offices of
Andrews & Kurth.
10. Deletion of References to Newstar. All
references to
Newstar, Inc. and Newstar contained in the Agreement are
hereby deleted
and replaced with the words "Ultramar Production Company"
and "UPC"
respectively.
11. Utilization of Information. In the event
the Partnership
Amendment is not executed on or before the Closing Date,
each of the
Parties hereby agrees that (i) Ultrastar and its
affiliates shall have
the right to utilize information regarding the operations
of the
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UPC Assets and to deal with the UPC Assets and any
properties in the
vicinity thereof for its own account and (ii) Unistar and
its affiliates
shall have the right to utilize information regarding the
operations of
the UT Assets and to deal with the UT Assets and any
properties in the
vicinity thereof for its own account. Neither Ultrastar
nor Unistar
shall be obligated to disclose to or share with Unimar (or
the other
partner in Unimar) any compensation or profit attributable
to the UPC
Assets or the UT Assets, as the case may be, or any
properties in the
vicinity thereof.
12. Continuance of Agreement. The Agreement
shall remain in
full force and effect and, except as specifically provided
herein, none
of its terms or provisions are modified or amended in any
manner
whatsoever.
13. Conflicts. In the event there shall be any
conflict
between the provisions of this Amendment and the
Agreement, the
provisions of this Amendment shall control.
14. GOVERNING LAWS. THE TERMS OF THIS AMENDMENT
SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF
TEXAS (EXCLUDING ANY CONFLICTS-OF-LAW RULE OR PRINCIPLE
THAT MIGHT REFER
SAME TO THE LAWS OF ANOTHER JURISDICTION), EXCEPT TO THE
EXTENT THAT
SAME ARE MANDATORILY
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SUBJECT TO THE LAWS OF ANOTHER JURISDICTION PURSUANT TO
THE LAWS OF SUCH OTHER JURISDICTION.
15. Definitions. Terms not otherwise defined
herein shall
have the respective meanings assigned to such terms in the
Agreement.
16. Counterparts. This Amendment may be
executed in any
number of counterparts, each of which when so executed
shall be
deemed an original and all of which together shall
constitute one and
the same instrument.
17. Severability. If any provision of this
Amendment is
invalid, illegal, or unenforceable, the remainder of the
Amendment
shall remain in full force and effect.
IN WITNESS WHEREOF, each of the Parties hereto has
caused this
Amendment to be signed by its duly authorized officer as of the
date first
above written.
UNIMAR COMPANY
By: Unistar, Inc., a General
Partner
By: /s/W.M. KRIPS
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Name: W.M. KRIPS
Title: President
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By: Ultrastar, Inc., a
General Partner
By: /s/ROBERT W.
BLAND
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Name: ROBERT W.
BLAND
Title: Senior Vice
President
UNISTAR, INC.
By: /s/W.M. KRIPS
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Name: W.M.
KRIPS
Title: President
ULTRASTAR, INC.
By: /s/ROBERT W.
BLAND
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Name: ROBERT W.
BLAND
Title: Senior Vice
President
ENSTAR CORPORATION
By: /s/ROBERT W.
BLAND
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Name: ROBERT W.
BLAND
Title: President
ULTRAMAR PRODUCTION
COMPANY
By: /s/ROBERT W.
BLAND
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Name: ROBERT W.
BLAND
Title: President
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UNION TEXAS
DEVELOPMENT
CORPORATION
By: /s/W.M.
KRIPS
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Name: W.M.
KRIPS
Title:
President
UNION TEXAS
PETROLEUM
CORPORATION
By: /s/W.M.
KRIPS
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Name: W.M.
KRIPS
Title: Vice
President
ULTRAMAR AMERICA
LIMITED
By: /s/ROBERT
W. BLAND
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Name: ROBERT W.
BLAND
Title: Vice
President
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