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EXHIBIT 10(j)
FIRST AMENDMENT TO
AMENDED AND RESTATED OMNIBUS ACQUISITION AGREEMENT
AND AMENDED AND RESTATED BASKET AGREEMENT
This First Amendment to Amended and Restated Omnibus Acquisition
Agreement and Amended and Restated Basket Agreement dated March 31, 1992 is
entered into among the parties to that certain Amended and Restated Omnibus
Acquisition Agreement (the "Omnibus Agreement") dated November 13, 1989, by and
among Cabot Corporation ("Cabot"), Cabot Transmission Corporation ("Seller")
and American Oil and Gas Corporation ("AOG"), and that certain Amended and
Restated Basket Agreement dated as of November 13, 1989, as amended and
restated as of June 30, 1990, by and among Seller, Cabot, AOG and American
Pipeline Company (the "Basket Agreement");
WHEREAS, the parties to the Omnibus Agreement and the Basket Agreement
believe that it is mutually beneficial and desire to amend certain provisions
of each such Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendments to Omnibus Agreement. The Omnibus Agreement is
hereby amended to delete Item No. 1 to Schedule 11.07 of the Omnibus Agreement.
The effect of such deletion shall be that Cabot shall no longer indemnify AOG,
the Acquired Companies (as defined in the Omnibus Agreement) and the other
enumerated persons and entities under Section 11.07(A) of the Omnibus Agreement
for those matters described in Item No. 1 to Schedule 11.07 of the Omnibus
Agreement.
Section 2. Amendments to Basket Agreement.
(a) Section 2.6 of the Basket Agreement, which defines the term
"Basket Payments," is hereby amended as follows:
(i) by deleting the word "and" immediately prior to clause
(iii) of Section 2.6 and inserting a comma in its place;
(ii) by replacing the period at the end of Section 2.6 with a
comma and inserting the following at the end of Section 2.6:
"(iv) all payments made after March 31, 1992, with
respect to all periods prior to November 13, 1989, by AOG or
its subsidiaries or affiliates to potential claimants
referenced in Schedule I to the First Amendment
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to Amended and Restated Omnibus Acquisition Agreement and
Amended and Restated Basket Agreement dated March 31, 1992
(the "First Amendment"), their subsidiaries, affiliates or
successors in interest ("Schedule I Claimants") in respect of
any potential claims (including possible claims for higher
prices and potential claims for refund) described in such
Schedule I (the "Schedule I Claims"), under the respective
contracts described in Schedule I in excess of the prices
previously paid to such Schedule I Claimants by AOG, its
subsidiaries, affiliates or predecessors in interest,
including payments arising out of any applicable tax
reimbursements and/or royalty claims which may arise as a
result of such payments of higher prices, (v) all payments
made after March 31, 1992, with respect to all periods after
November 12, 1989, by AOG, its subsidiaries or affiliates to
Schedule I Claimants in respect of the Schedule I Claims for
amounts in excess of (x) the Section l06(b)(1)(A) gas price
in effect from time to time under the Natural Gas Policy Act
of 1978 and related regulations through December 31, 1992 and
(y) that price which is paid in good faith for periods after
December 31, 1992 to the Schedule I Claimants under the
respective gas contracts described in Schedule I, including
any payment arising out of applicable tax reimbursement
obligations and/or royalty claims which may arise as a result
of such payments of higher prices, (vi) any payments arising
out of royalty claims, which payments are made after March
31, 1992 by AOG, its subsidiaries or affiliates with respect
to Schedule I Claims which were settled prior to March 31,
1992 with Cabot's approval but which settlements expressly
did not resolve the royalty claim issues, (vii) all payments
or refunds (including without limitation payments arising out
of royalty claims related in any way to such payments) which
AOG, its subsidiaries, or affiliates may become legally
obligated to make in respect
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of the Schedule I Claims and not covered by clauses (iv)
through (vi) hereof, and (viii) all outside legal,
professional or other out-of-pocket expenses or costs
incurred by AOG, its subsidiaries or affiliates after March
31, 1992, in connection with the investigation, analysis,
negotiation, litigation, arbitration or settlement of any of
the Schedule I Claims, potential Schedule I Claims or any and
all of the matters identified in clauses (iv) through (vii)
hereof, including without limitation the costs of preparing
gas reserve reports covering gas production and reserves
produced under the respective gas contracts described in
Schedule I hereto.
(b) Section 2.3 of the Basket Agreement, which defines the term
"Basket Collections," is hereby amended as follows:
(i) by deleting the word "and" at the end of the first
clause (ii) of Section 2.3;
(ii) by replacing the period at the end of the first
clause (iii) of Section 2.3 with a semicolon followed by the word "and"; and
(iii) adding the following immediately after the first
clause (iii) of Section 2.3:
"(iv) the amortization in the actual weighted
average cost of gas used in billing customers or other
recovery by flow-through to customers or liquidation or
recovery in any other manner of the payments, refunds,
expenses or costs described in clauses (iv) through (viii) of
Section 2.6 hereof.
(c) Section 7 of the Basket Agreement is hereby amended by inserting
the following clause immediately following the term "Take or Pay Claims" in
each place where such term appears in Section 7:
"or Schedule I Claims (as such term is defined in Section
2.6), together with all related claims described in clauses
(iv) through (viii) of Section 2.6 hereof"
Section 3. Effect of Amendments. The respective amendments to the
Omnibus Agreement and Basket Agreement set forth in this First Amendment (i)
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shall be effective as of the date hereof and (ii) shall remain subject to all
other effective provisions of the agreement being amended hereby.
Section 4. Counterparts. This First Amendment may be executed by the
parties hereto in multiple counterparts, all of which counterparts, taken
together, shall constitute one and the same agreement.
CABOT CORPORATION
By:
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Name:
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Title:
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CABOT TRANSMISSION CORPORATION
By: /s/ Xxxxxx X. [NOT LEGIBLE]
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Name: Xxxxxx X. [NOT LEGIBLE]
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Title: Vice President
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AMERICAN OIL AND GAS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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AMERICAN PIPELINE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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