Exhibit 10(d)(ii)
CAPITAL AND LIQUIDITY SUPPORT AGREEMENT
This CAPITAL AND LIQUIDITY SUPPORT AGREEMENT, is made and
entered into as of the 29th day of May, 1997 by and among Eastern
Enterprises ("Eastern "), a Massachusetts voluntary association,
AllEnergy Marketing Company, Inc., ("AMCI"), a wholly owned
subsidiary of Eastern, New England Electric System ("XXXX"), a
Massachusetts voluntary association, XXXX Energy Inc., ("NEI"), a
wholly owned subsidiary of XXXX, and AllEnergy Marketing Company,
L.L.C. ("AllEnergy"), a Massachusetts limited liability company.
WITNESSETH
WHEREAS, AMCI and NEI each own fifty percent (50%) of the
equity of AllEnergy; and
WHEREAS, AllEnergy intends to incur "Fleet Debt" (as that
term hereinafter is defined) for the purposes of carrying on its
business; and
WHEREAS, Eastern, AMCI, XXXX, and NEI desire to take certain
actions to support the financial condition of AllEnergy as
hereinafter set forth in order to assure its ability to incur
Fleet Debt;
NOW, THEREFORE, in consideration of the mutual promises
herein contained, the parties hereto agree as follows:
1. Stock Ownership. So long as there shall remain unpaid any
Fleet Debt which AllEnergy may have incurred, each of AMCI
and NEI shall own fifty percent (50%) of all the outstanding
equity of AllEnergy; provided, however that, upon prior
written notice to Fleet National Bank, each of AMCI and NEI
may transfer some or all of its equity in AllEnergy to the
other party. As used herein, the term "Fleet Debt" shall
mean all obligations of AllEnergy for borrowed money and in
respect of letters of credit issued for the account of
AllEnergy, including but not limited to repayment of
principal, accrued unpaid interest, fees, penalties, and
other costs, pursuant to a promissory note and letter
agreement, each dated May 1997, with Fleet National Bank,
("Fleet Credit Agreement") under which AllEnergy may borrow
or request that Fleet National Bank issue its letter or
letters of credit, which borrowings and/or letters of credit
may not exceed Ten Million ($10,000.00) Dollars outstanding
at any one time.
2. Maintenance of Net Worth. While any Fleet Debt is
outstanding, each of AMCI and NEI, severally and not
jointly, shall take all action necessary to ensure that the
"Net Worth" (as that term hereinafter is defined) of
AllEnergy is maintained at not less than One Dollar ($1.00).
As used herein the term "Net Worth" shall mean the excess of
assets over liabilities as determined in accordance with
generally accepted accounting principles as used by the
United States Financial Accounting Standards Board, as in
effect from time to time, consistently applied.
3. Maintenance of Liquidity. Each of AMCI and NEI, severally
and not jointly, shall, from time to time, make
contributions to AllEnergy of cash or other liquid assets
sufficient to permit AllEnergy to pay and satisfy its Fleet
Debt promptly following written notice from AllEnergy or
Fleet National Bank to AMCI and NEI of any lack of
AllEnergy's ability to satisfy such requirements on its own.
4. Payments by AMCI and NEI. In the event that AllEnergy's Net
Worth is less than One Dollar ($1.00) (a "Net Worth
Deficiency"), or in the event that AllEnergy does not have
sufficient cash or other liquid assets to permit it to pay
and satisfy the Fleet Debt as any such Fleet Debt becomes
due (a "Liquidity Deficiency"), each of AMCI and NEI
immediately shall, upon notice from AllEnergy or Fleet
National Bank, pay to AllEnergy an amount equal to the
product of (i) the amount of the Net Worth Deficiency or
Liquidity Deficiency, as the case may be and (ii) their
respective percentage ownership interests in the equity of
AllEnergy provided, however, in no event shall the aggregate
of percentage interests described in clause (ii) be less
than 100% and provided further , however, AMCI and NEI may,
in lieu of payment to AllEnergy, elect to directly payoff
and retire all outstanding Fleet Debt and terminate the
Fleet Credit Agreement in accordance with its terms.
Eastern and XXXX agree to, severally (as determined by the
percentage ownership interest of their respective
subsidiaries in AllEnergy which at all times shall equal
100% in the aggregate) and not jointly, provide the
necessary funds to AMCI and NEI, respectively, to meet their
payment commitments under sections 2, 3, and 4 hereof.
5. No Guarantee of Indebtedness. This Agreement is not, and
nothing herein contained, and no action taken pursuant
hereto by Eastern, AMCI, XXXX, or NEI shall be construed as,
or deemed to constitute, a direct or indirect guarantee by
Eastern, AMCI, NEES, NEI, or any one or more of them, to any
person or entity of the payment of Fleet Debt or any other
indebtedness, or of any liability or obligation of any kind
or character whatsoever of AllEnergy or any subsidiary of
AllEnergy; provided, however, that AllEnergy may deliver
copies of this Agreement to Fleet National Bank who shall be
entitled to rely thereon in extending credit to AllEnergy
under the Fleet Credit Agreement.
6. Waivers. None of the parties hereto shall be relieved of
any of its obligations or duties hereunder due to the
failure or delay on the part of AllEnergy in asserting or
enforcing any of its rights, or in making any claims or
demands, hereunder.
7. Amendments and Termination. This Agreement may be amended
or modified at any time by the parties hereto; provided,
however, that no such amendment or modification which
adversely affects the holders of Fleet Debt outstanding at
the time of execution thereof shall be binding on or in any
manner become effective with respect to such Fleet Debt
except with the prior written consent of the holders of not
less than a majority in principal amount of Fleet Debt at
the time outstanding. This Agreement shall automatically
terminate on the second anniversary of the date hereof and
may be terminated by any party hereto upon 30 days prior
written notice to the other parties; provided, however, that
this Agreement shall not terminate until such time as all
Fleet Debt outstanding on or prior to the date of the giving
of notice of termination shall have been paid in full.
8. Successors. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns
and is also intended for the benefit of the holders from
time to time of the Fleet Debt and, notwithstanding that
such holders are not parties hereto, each such holder shall
be entitled to the full benefits of this Agreement and to
enforce the covenants and agreements contained therein.
This Agreement is not intended for the benefit of any person
other than the holders of Fleet Debt, and shall not confer
or be deemed to confer upon other such person any benefits,
rights or remedies hereunder.
9. Governing Law. This Agreement shall be governed by the Laws
of The Commonwealth of Massachusetts.
10. Reference is hereby made to the declaration of trust
establishing Eastern Enterprises (formerly Eastern Gas and
Fuel Associates) dated July 18, 1929, as amended, a copy of
which is on file in the office of the Secretary of the
Commonwealth of Massachusetts. The name "Eastern
Enterprises" refers to the trustees under said declaration
of trustees and not personally; and no trustee, shareholder,
officer or agent of Eastern Enterprises shall be held to any
personal liability in connection with the affairs of said
Eastern Enterprises, but the trust estate only is liable.
11. The name "New England Electric System" means the trustee or
trustees for the time being (as trustee or trustees but not
personally) under an agreement and declaration of trust
dated January 2, 1926, as amended, which is hereby referred
to, and a copy of which as amended has been filed with the
Secretary of the Commonwealth of Massachusetts. Any
agreement, obligation or liability made, entered into or
incurred by or on behalf of New England Electric System
binds only its trust estate, and no shareholder, director,
trustee, officer or agent thereof assumes or shall be held
to any liability therefor.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as an instrument under
seal by their respective officers thereunto duly authorized as of
the date and year first written above.
ALLENERGY MARKETING COMPANY, L.L.C.
By: s/Xxxxx X. Xxxx
Its: Vice President and Treasurer
EASTERN ENTERPRISES NEW ENGLAND ELECTRIC SYSTEM
By: By: s/Xxxxxx X. Xxxxxxx
Its: Its: Executive Vice President
ALLENERGY MARKETING XXXX ENERGY, INC.
COMPANY, INC.
By: By: s/Xxxx X. Xxxxxxxx
Its: Its: Treasurer
