SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of October 5, 1998, between CENTRAL VERMONT
PUBLIC SERVICE CORPORATION, a Vermont corporation ("Grantor"), and TORONTO
DOMINION (TEXAS), INC. ("TD-Texas"), as collateral agent (in such capacity,
"Collateral
Agent") for the Secured Parties (as defined in the Credit Agreement referred
to below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as of November
5, 1997 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), by
and among Grantor, the lenders signatory thereto from time to time
("Lenders") and TD-Texas,
as agent for Lenders (in such capacity, "Agent"), Lenders have agreed to
make Loans to the
Grantor;
WHEREAS, pursuant to (i) the Amended and Restated Reimbursement
Agreement, dated as
of September 24, 1992, between Grantor and The Toronto-Dominion Bank,
Houston Agency
("TD"), (ii) the Reimbursement Agreement, dated as of April 29, 1993, between
Central Vermont
Public Service Corporation - East Barnet Hydroelectric, Inc. ("East Barnet")
and TD, together
with Grantor's guaranty thereof, and (iii) the Letter of Credit and
Reimbursement Agreement,
dated as of November 1, 1994, between Grantor and TD (collectively, as
amended, supplemented
or otherwise modified from time to time, the "Existing Letter of Credit
Agreements"), TD has
agreed to incur letter of credit obligations on behalf of Grantor and East
Barnet, as applicable;
and
WHEREAS, in order to induce (i) Lenders to enter into the Third Amendment
(as hereinafter
defined), (ii) Lenders to continue to make the Loans as provided in the Credit
Agreement and
(iii) TD to continue to incur letter of credit obligations as provided in the
Reimbursement
Agreements, Grantor has agreed to grant Collateral Agent a continuing Lien
on the Collateral (as
hereinafter defined) to secure the Secured Obligations (as defined in the
Credit Agreement);
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained
and for other good and valuable consideration, the receipt and sufficiency
of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINED TERMS. (a) All capitalized terms used but not
otherwise defined herein
have the meanings given to them in the Credit Agreement. All other
undefined terms contained
in this Security Agreement, unless the context indicates otherwise, have the
meanings provided
for by Article 9 of the Code to the extent the same are used or defined therein.
(b) In addition, the following terms shall have the following definitions:
"Code" shall mean the Uniform Commercial Code as the same may, from time
to time, be in
effect in the State of New York; provided, that in the event that, by reason
of mandatory
provisions of law, any or all of the attachment, perfection or priority of
Collateral Agent's
security interest in any Collateral is governed by the Uniform Commercial
Code as in effect in a
jurisdiction other than the State of New York, the term "Code" shall mean the
Uniform
Commercial Code as in effect in such other jurisdiction for purposes of the
provisions of this
Agreement relating to such attachment, perfection or priority and for
purposes of definitions
related to such provisions.
"Collateral" shall have the meaning assigned to such term in Section 2
hereof.
"Default" shall mean any condition or event that constitutes an Event of
Default under any
Transaction Document or that with notice or lapse of time or both would,
unless cured or waived,
constitute an Event of Default thereunder.
"Equipment" shall have the meaning assigned to such term in the Code and
shall include in
any event, without limitation, all electrical plants and systems and gas
plants of Grantor and all
equipment, structures, buildings, dams, canals, pen-stocks, engines, boilers,
benches, holders,
condensers, pumps, machinery, transformers, tools, mains, pipes, conduits,
insulators, dynamos,
meters, wires, transmission lines, towers, poles, electrical conductors,
motors, leases and
contracts in any way pertaining to such plants and systems and/or the
operation thereof.
"Event of Default" shall mean an Event of Default as defined in each of
the Transaction
Documents.
"Proceeds" shall mean "proceeds," as such term is defined in the Code
and, in any event, shall
include: (i) any and all proceeds of any insurance, indemnity, warranty or
guaranty payable to
Grantor from time to time with respect to any Collateral; (ii) any and all
payments (in any form
whatsoever) made or due and payable to Grantor from time to time in
connection with any
requisition, confiscation, condemnation, seizure or forfeiture of any
Collateral by any
governmental body, authority, bureau or agency (or any Person acting under
color of
governmental authority); (iii) any recoveries by Grantor against third
parties with respect to any
litigation or dispute concerning any Collateral; and (iv) any and all
other amounts from time to
time paid or payable under or in connection with any Collateral, upon
disposition or otherwise.
"Termination Date" shall mean the date on which the Secured Obligations
have been
indefeasibly repaid in full and the Secured Parties shall not have any
obligations under the
Transaction Documents to make any further financial accommodations to
Grantor or East Barnet.
"Third Amendment" shall mean the Third Amendment to Credit Agreement,
dated as of the
date hereof, among Grantor, Lenders, Agent and Fleet National Bank, as
syndication agent.
2. GRANT OF LIEN.
(a) To secure the prompt and complete payment, performance and
observance of all of the
Secured Obligations, Grantor hereby grants, assigns, conveys, mortgages,
pledges, hypothecates
and transfers to Collateral Agent, for itself and the benefit of Secured
Parties, a Lien upon all of
its right, title and interest in, to and under the following property,
whether now owned by or
owing to, or hereafter acquired by or arising in favor of Grantor
(including under any trade
names, styles or derivations thereof), and whether owned or consigned by or
to, or leased from or
to, Grantor, and regardless of where located (all of which being hereinafter
collectively referred
to as the "Collateral"):
(i) all Equipment;
(ii) all Fixtures;
(iii) all Instruments which are now or may hereafter be deposited with
the Indenture Trustee
in accordance with the Indenture or the Collateral Agent in accordance with
the Transaction
Documents, as the case may be, or, without limiting the foregoing, any such
Collateral which has
been released by the Indenture Trustee but which pursuant to the proviso in
Section 14 hereof
would not be required to be released by the Collateral Agent;
(iv) all stock which is now or may hereafter be deposited with the
Indenture Trustee in
accordance with the Indenture or the Collateral Agent in accordance with the
Transaction
Documents, as the case may be, or, without limiting the foregoing, any such
Collateral which has
been released by the Indenture Trustee but which pursuant to the proviso in
Section 14 hereof
would not be required to be released by the Collateral Agent;
(v) all money, cash or cash equivalents of Grantor which is now or may
hereafter be
deposited with the Indenture Trustee in accordance with the Indenture or the
Collateral Agent in
accordance with the Transaction Documents, as the case may be, or, without
limiting the
foregoing, any such Collateral which has been released by the Indenture
Trustee but which
pursuant to the proviso in Section 14 hereof would not be required to be
released by the
Collateral Agent; and
(vi) to the extent not otherwise included, all Proceeds and products of
the foregoing and all
accessions to, substitutions and replacements for, and rents and profits of,
each of the foregoing.
(b) Notwithstanding anything to the contrary contained herein, each of
Grantor and Collateral
Agent acknowledges and agrees that "Collateral" shall not include (i) lamps
and supplies,
machinery, appliances, goods, wares and other removable property now or at
any time handled
by Grantor for sale as merchandise or not in use or connected as fixtures
with its own plants, and
consumable supplies, (ii) all money, cash, cash equivalents, stock and
Instruments not deposited
with either the Indenture Trustee under the Indenture (other than due to a
release by the Indenture
Trustee of any stock or Instrument where pursuant to the terms contemplated
by the proviso in
Section 14 hereof Collateral Agent would not be required to release such
Collateral) or the
Collateral Agent under the Transaction Documents, (iii) all telephone
properties at any time
owned or acquired by Grantor and (iv) any and all other property, real,
personal or mixed, in
which a Lien is not purported to be granted under the Indenture (other than
due to a release by
the Indenture Trustee of such property where pursuant to the terms
contemplated by the proviso
in Section 14 hereof Collateral Agent would not be required to release such
property).
(c) Notwithstanding anything to the contrary contained herein, the
security interest of the
Collateral Agent in the Collateral is subject to the specific rights,
privileges, liens, encumbrances,
restrictions, conditions, limitations, covenants, interests, reservations,
exceptions and otherwise
as provided in the Indenture, and in the descriptions in the schedules
thereto and in the deeds or
grants in said schedules referred to therein.
(d) In addition, to secure the prompt and complete payment,
performance and observance of
the Secured Obligations and in order to induce Collateral Agent and Secured
Parties as aforesaid,
Grantor hereby grants to Collateral Agent, for itself and the benefit of
Secured Parties, a right of
setoff against the property of Grantor held by Collateral Agent or any
Secured Party, consisting
of property described above in Section 2(a) now or hereafter in the
possession or custody of or in
transit to Collateral Agent or any Secured Party, for any purpose, including
safekeeping,
collection or pledge, for the account of Grantor, or as to which Grantor may
have any right or
power.
3. REPRESENTATIONS AND WARRANTIES. Grantor represents and warrants
that:
(a) Grantor is the sole owner of each item of the Collateral upon
which it purports to ▇▇▇▇▇ ▇
▇▇▇▇ hereunder, and has good and marketable title thereto free and clear of
any and all Liens
other than Permitted Liens.
(b) No effective security agreement, financing statement, equivalent
security or Lien
instrument or continuation statement covering all or any part of the
Collateral is on file or of
record in any public office, except such as may have been filed (i) by
Grantor in favor of
Collateral Agent pursuant to this Security Agreement or the Mortgage, and
(ii) in connection
with any other Permitted Liens.
(c) This Security Agreement is effective to create a valid and continuing
Lien on and, upon
the filing of the appropriate financing statements listed on Schedule I hereto,
a perfected Lien in
favor of Collateral Agent, for itself and the benefit of Secured Parties, on
the Collateral with
respect to which a Lien may be perfected by filing pursuant to the Code.
Such Lien is prior to all
other Liens, except Permitted Liens and Permitted Exceptions (as defined in
the Mortgage)
relating to the Mortgage and other Permitted Liens that would be prior to
Liens in favor of
Collateral Agent for the benefit of Collateral Agent and Secured Parties as
a matter of law, and is
enforceable as such as against any and all creditors of and purchasers from
Grantor. All action by
Grantor necessary or desirable to protect and perfect such Lien on each item
of the Collateral has
been duly taken.
(d) Grantor's chief executive office, principal place of business,
corporate offices, all
warehouses and premises where Collateral is stored or located, and the
locations of all of its
books and records concerning the Collateral are set forth on Schedule II
hereto.
4. COVENANTS. Grantor covenants and agrees with Collateral Agent,
for the benefit of
Collateral Agent and Secured Parties, that from and after the date of this
Security Agreement and
until the Termination Date:
(a) Further Assurances. At any time and from time to time, upon the
written request of
Collateral Agent and at the sole expense of Grantor, Grantor shall promptly
and duly execute and
deliver any and all such further instruments and documents and take such
further actions as
Collateral Agent may deem desirable to obtain the full benefits of this
Security Agreement and of
the rights and powers herein granted, including (i) using its best efforts
to secure all
Governmental Approvals necessary or appropriate to give full effect to the
grant of the Liens
hereunder; (ii) filing any financing or continuation statements under the
Code with respect to the
Liens granted hereunder or under any other Loan Document and (iii)
transferring Collateral to
Collateral Agent's possession (for the benefit of Collateral Agent and
Secured Parties) if
requested by Collateral Agent (but only if such Collateral consists of
Instruments, stock, money,
cash or cash equivalents, which was at one time in the possession of the
Indenture Trustee and
has since been released). Grantor also hereby authorizes Collateral Agent,
for the benefit of
Collateral Agent and Secured Parties, to file any such financing or
continuation statements
without the signature of Grantor to the extent permitted by applicable law.
(b) Maintenance of Records. Grantor shall keep and maintain, at its
own cost and expense,
satisfactory and complete records of the Collateral, including a record of
any and all payments
received and any and all credits granted with respect to the Collateral and
all other dealings with
the Collateral. Grantor shall ▇▇▇▇ its books and records pertaining to the
Collateral to evidence
this Security Agreement and the Liens granted hereby.
(c) Indemnification. In any suit, proceeding or action brought by
Collateral Agent or any
Secured Party relating to any Instrument for any sum owing thereunder or to
enforce any
provision of any Instrument, Grantor will save, indemnify and keep Collateral
Agent and
Secured Parties harmless from and against all expense (including reasonable
attorneys' fees and
expenses), loss or damage suffered by reason of any defense, setoff,
counterclaim, recoupment or
reduction of liability whatsoever of the obligor thereunder, arising out of
a breach by Grantor of
any obligation thereunder or arising out of any other agreement,
indebtedness or liability at any
time owing to, or in favor of, such obligor or its successors from Grantor,
except in the case of
Collateral Agent or any Secured Party, to the extent such expense, loss, or
damage is attributable
solely to the gross negligence or willful misconduct of Collateral Agent or
such Secured Party as
finally determined by a court of competent jurisdiction. All such
obligations of Grantor shall be
and remain enforceable against and only against Grantor and shall not be
enforceable against
Collateral Agent or any Secured Party.
(d) Limitation on Liens on Collateral. Grantor will not create,
permit or suffer to exist, and
will defend the Collateral against, and take such other action as is
necessary to remove, any Lien
on the Collateral except Permitted Liens, and will defend the right, title
and interest of Collateral
Agent and Secured Parties in and to any of Grantor's rights under the
Collateral against the
claims and demands of all Persons whomsoever.
(e) Limitations on Disposition. Grantor will not sell, lease,
transfer or otherwise dispose of
any of the Collateral, or attempt or contract to do so except as permitted
by the Credit
Agreement.
(f) Further Identification of Collateral. Grantor will, if so
requested by Collateral Agent,
furnish to Collateral Agent, as often as Collateral Agent requests,
statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the
Collateral as Collateral Agent may reasonably request, all in such detail
as Collateral Agent may
specify.
(g) Notices. Grantor will advise Collateral Agent promptly, in
reasonable detail, (i) of any
Lien (other than Permitted Liens) or claim made or asserted against any of the
Collateral, and
(ii) of the occurrence of any other event which would have a material adverse
effect on the
aggregate value of the Collateral or on the Liens created hereunder or under
any other
Transaction Document.
5. COLLATERAL AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT. Until all of
the Secured Obligations have been paid in full, Grantor hereby absolutely and
irrevocably
constitutes and appoints Collateral Agent as Grantor's true and lawful agent
and attorney-in-fact,
with full power of substitution, in the name of Grantor: (a) to execute and
do all such assurances,
acts and things which Grantor is required to do but has failed to do under the
covenants and
provisions contained in this Security Agreement; (b) to take any and all such
action as Collateral
Agent or any of its agents, nominees or attorneys may determine as necessary
or advisable for the
purpose of maintaining, preserving or protecting the security constituted by
this Security
Agreement or any of the rights, remedies, powers or privileges of Collateral
Agent under this
Security Agreement; and (c) generally, in the name of Grantor, exercise all
or any of the powers,
authorities and discretions, conferred on or reserved to Collateral Agent
by or pursuant to this
Security Agreement, and (without prejudice to the generality of any of the
foregoing) to seal and
deliver or otherwise perfect any deed, assurance, agreement, instrument or
act as Collateral
Agent may deem proper in or for the purpose of exercising any of such
powers, authorities or
discretions, in each case. NONE OF COLLATERAL AGENT, SECURED PARTIES OR
THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
REPRESENTATIVES SHALL BE RESPONSIBLE TO GRANTOR FOR ANY ACT OR
FAILURE TO ACT UNDER THIS POWER OF ATTORNEY OR OTHERWISE, EXCEPT IN
RESPECT OF DAMAGES ATTRIBUTABLE SOLELY TO THEIR OWN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT AS FINALLY DETERMINED BY A COURT
OF COMPETENT JURISDICTION, NOR FOR ANY PUNITIVE, EXEMPLARY, INDIRECT
OR CONSEQUENTIAL DAMAGES.
6. STOCK COLLATERAL; INSTRUMENTS. (a) As long as no Default shall
have
occurred and be continuing and until written notice shall be given to
Grantor by Collateral
Agent:
(i) Grantor shall have the right, from time to time, to vote and give
consents with respect to
all stock pledged hereunder, or any part thereof for all purposes not
inconsistent with the
provisions of this Security Agreement, or any other Transaction Document;
provided, however,
that no vote shall be cast, and no consent shall be given or action taken,
which would have the
effect of impairing the position or interest of Collateral Agent or any
Secured Party in respect of
such stock or which would be prohibited by this Security Agreement or any
other Transaction
Document, and
(ii) Grantor shall be entitled, from time to time, to collect and
receive for its own use all cash
dividends and cash interest paid in respect of such stock or pledged
Instruments to the extent not
in violation of this Security Agreement.
(b) Notwithstanding the foregoing, in the event a Default has occurred
and is continuing,
Collateral Agent shall have the right, subject to the rights of the
Indenture Trustee, to exercise all
voting rights in respect of stock pledged hereunder and to receive all
dividends, interest and
distributions, if any, made in respect of the stock and Instruments pledged
hereunder.
7. REMEDIES; RIGHTS UPON DEFAULT.
(a) In addition to all other rights and remedies granted to it under
this Security Agreement,
the Credit Agreement, the other Transaction Documents and under any other
instrument or
agreement securing, evidencing or relating to any of the Secured
Obligations, if any Event of
Default shall have occurred and be continuing, Collateral Agent, subject to
the rights of the
Indenture Trustee, may exercise all rights and remedies of a secured party
under the Code.
Without limiting the generality of the foregoing, Grantor expressly agrees
that in any such event
Collateral Agent, without demand of performance or other demand, advertisement
or notice of
any kind (except the notice specified below of time and place of public or
private sale) to or upon
Grantor or any other Person (all and each of which demands, advertisements and
notices are
hereby expressly waived to the maximum extent permitted by the Code and
other applicable
law), may, subject to the rights of the Indenture Trustee, forthwith enter
upon the premises of
Grantor where any Collateral is located through self-help, without judicial
process, without first
obtaining a final judgment or giving Grantor or any other Person notice and
opportunity for a
hearing on Collateral Agent's claim or action and may collect, receive,
assemble, process,
appropriate and realize upon the Collateral, or any part thereof, and may,
subject to the rights of
the Indenture Trustee, forthwith sell, lease, assign, give an option or options
to purchase, or sell
or otherwise dispose of and deliver said Collateral (or contract to do so),
or any part thereof, in
one or more parcels at a public or private sale or sales, at any exchange at
such prices as it may
deem acceptable, for cash or on credit or for future delivery without
assumption of any credit
risk. Collateral Agent or any Secured Party shall have the right upon any
such public sale or
sales and, to the extent permitted by law, upon any such private sale or sales,
to purchase for the
benefit of Collateral Agent and Secured Parties, the whole or any part of said
Collateral so sold,
free of any right or equity of redemption, which equity of redemption Grantor
hereby releases.
Such sales may be adjourned and continued from time to time with or without
notice. Collateral
Agent shall have the right to conduct such sales on Grantor's premises or
elsewhere and shall
have the right to use Grantor's premises without charge for such time or
times as Collateral
Agent deems necessary or advisable.
Subject to the rights of the Indenture Trustee, Grantor further agrees,
at Collateral Agent's
request, to assemble the Collateral and make it available to Collateral
Agent at places which
Collateral Agent shall select, whether at Grantor's premises or elsewhere.
Until Collateral Agent
is able to effect a sale, lease, or other disposition of Collateral,
Collateral Agent, subject to the
rights of the Indenture Trustee, shall have the right to hold or use
Collateral, or any part thereof,
to the extent that it deems appropriate for the purpose of preserving
Collateral or its value or for
any other purpose deemed appropriate by Collateral Agent. Collateral Agent
shall have no
obligation to Grantor to maintain or preserve the rights of Grantor as
against third parties with
respect to Collateral while Collateral is in the possession of Collateral
Agent, subject to the rights
of the Indenture Trustee. Collateral Agent may, if it so elects, seek the
appointment of a receiver
or keeper to take possession of Collateral and to enforce any of Collateral
Agent's remedies (for
the benefit of Collateral Agent and Secured Parties), with respect to such
appointment without
prior notice or hearing as to such appointment. Subject to the rights of the
Indenture Trustee,
Collateral Agent shall apply the net proceeds of any such collection, recovery,
receipt,
appropriation, realization or sale to the Secured Obligations as provided in
the Collateral Agency
Agreement, and only after so paying over such net proceeds, and after the
payment by Collateral
Agent of any other amount required by any provision of law, need Collateral
Agent account for
the surplus, if any, to Grantor. To the maximum extent permitted by
applicable law, Grantor
waives all claims, damages, and demands against Collateral Agent or any
Secured Party arising
out of the repossession, retention or sale of the Collateral except such as
arise solely out of the
gross negligence or willful misconduct of Collateral Agent or such Secured
Party as finally
determined by a court of competent jurisdiction. Grantor agrees that ten
(10) days prior notice
by Collateral Agent of the time and place of any public sale or of the time
after which a private
sale may take place is reasonable notification of such matters. Grantor
shall remain liable for any
deficiency if the proceeds of any sale or disposition of the Collateral are
insufficient to pay all
Secured Obligations, including any attorneys' fees or other expenses
incurred by Collateral Agent
or any Secured Party to collect such deficiency.
(b) Except as otherwise specifically provided herein, Grantor hereby
waives presentment,
demand, protest or any notice (to the maximum extent permitted by applicable
law) of any kind
in connection with this Security Agreement or any Collateral.
8. LIMITATION ON COLLATERAL AGENT'S AND SECURED PARTIES' DUTY IN
RESPECT OF COLLATERAL. Collateral Agent and each Secured Party shall use
reasonable
care with respect to the Collateral in its possession or under its control.
Neither Collateral Agent
nor any Secured Party shall have any other duty as to any Collateral in its
possession or control
or in the possession or control of any agent or nominee of Collateral Agent
or such Secured
Party, or any income thereon or as to the preservation of rights against
prior parties or any other
rights pertaining thereto.
9. REINSTATEMENT. This Security Agreement shall remain in full
force and effect and
continue to be effective should any petition be filed by or against Grantor
for liquidation or
reorganization, should Grantor become insolvent or make an assignment for
the benefit of any
creditor or creditors or should a receiver or trustee be appointed for all
or any significant part of
Grantor's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any
time payment and performance of the Secured Obligations, or any part thereof,
is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored
or returned by any
obligee of the Secured Obligations, whether as a "voidable preference,"
"fraudulent conveyance,"
or otherwise, all as though such payment or performance had not been made.
In the event that
any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Secured
Obligations shall be reinstated and deemed reduced only by such amount paid
and not so
rescinded, reduced, restored or returned.
10. NOTICES. Except as otherwise provided herein, whenever it is
provided herein that
any notice, demand, request, consent, approval, declaration or other
communication shall or may
be given to or served upon any of the parties by any other party, or
whenever any of the parties
desires to give and serve upon any other party any communication with
respect to this Security
Agreement, each such notice, demand, request, consent, approval, declaration
or other
communication shall be in writing and shall be given in the manner, and
deemed received, as
provided for in the Credit Agreement (it being understood that, for
purposes of this Section 10
only, Collateral Agent shall be deemed to be Agent under the Credit Agreement).
11. SEVERABILITY. Whenever possible, each provision of this Security
Agreement shall
be interpreted in a manner as to be effective and valid under applicable law,
but if any provision
of this Security Agreement shall be prohibited by or invalid under applicable
law, such 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 Security
Agreement. This
Security Agreement is to be read, construed and applied together with the
Transaction
Documents which, taken together, set forth the complete understanding and
agreement of
Collateral Agent, Secured Parties and Grantor with respect to the matters
referred to herein and
therein.
12. NO WAIVER; CUMULATIVE REMEDIES. Neither Collateral Agent nor any
Secured Party shall by any act, delay, omission or otherwise be deemed to have
waived any of its
rights or remedies hereunder, and no waiver shall be valid unless in
writing, signed by Collateral
Agent and then only to the extent therein set forth. A waiver by Collateral
Agent of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy
which Collateral Agent would otherwise have had on any future occasion.
No failure to exercise
nor any delay in exercising on the part of Collateral Agent or any Secured
Party, any right, power
or privilege hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of
any right, power or privilege hereunder preclude any other or future
exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are
cumulative and may be exercised singly or concurrently, and are not
exclusive of any rights and
remedies provided by law. None of the terms or provisions of this Security
Agreement may be
waived, altered, modified or amended except by an instrument in writing,
duly executed by
Collateral Agent and Grantor.
13. LIMITATION BY LAW. All rights, remedies and powers provided in
this Security
Agreement may be exercised only to the extent that the exercise thereof
does not violate any
applicable provision of law, and all the provisions of this Security
Agreement are intended to be
subject to all applicable mandatory provisions of law that may be controlling
and to be limited to
the extent necessary so that they shall not render this Security Agreement
invalid, unenforceable,
in whole or in part, or not entitled to be recorded, registered or filed
under the provisions of any
applicable law.
14. TERMINATION OF THIS SECURITY AGREEMENT; PRIOR RELEASE OF
LIENS. Subject to Section 9 hereof, this Security Agreement shall terminate
upon the
Termination Date. If, however, prior to the Termination Date the Indenture
Trustee shall release
its Lien on all or any portion of the Collateral, the Lien granted hereunder
with respect to such
Collateral shall be automatically without further act, unconditionally and
simultaneously released
and terminated; provided, however, that if such release is in connection
with the repayment in
full of the First Mortgage Bonds or if an Event of Default has occurred and
is continuing, then
notwithstanding the release of any Collateral from the Lien of the Indenture
Trustee under the
Indenture (i) no Collateral shall be deemed to be released hereunder and
(ii) Grantor shall cause
the Indenture Trustee to immediately deliver to Collateral Agent all
Collateral then in the
possession of the Indenture Trustee, including all stock, Chattel Paper and
Instruments. At any
time and from time to time, upon the written request of Grantor and at the
sole expense of
Grantor, Collateral Agent shall promptly and duly execute and deliver
UCC-3 termination
statements and any and all such further instruments and documents and take
such further actions
reasonably necessary to evidence any release hereunder.
15. SUCCESSORS AND ASSIGNS. This Security Agreement and all
obligations of
Grantor hereunder shall be binding upon the successors and assigns of
Grantor (including any
debtor-in-possession on behalf of Grantor) and shall, together with the rights
and remedies of
Collateral Agent, for the benefit of Collateral Agent and Secured Parties,
hereunder, inure to the
benefit of Collateral Agent and Secured Parties, all future holders of any
instrument evidencing
any of the Secured Obligations and their respective successors and assigns.
No sales of
participations, other sales, assignments, transfers or other dispositions
of any agreement
governing or instrument evidencing the Secured Obligations or any portion
thereof or interest
therein shall in any manner affect the Lien granted to Collateral Agent,
for the benefit of
Collateral Agent and Secured Parties, hereunder. Grantor may not assign,
sell, hypothecate or
otherwise transfer any interest in or obligation under this Security
Agreement.
16. COUNTERPARTS. This Security Agreement may be executed by the
parties hereto on
any number of separate counterparts and all of said counterparts taken
together shall be deemed
to constitute one and the same instrument.
17. GOVERNING LAW. THIS SECURITY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK.
18. WAIVER OF JURY TRIAL. GRANTOR AND COLLATERAL AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS SECURITY AGREEMENT AND FOR
ANY COUNTERCLAIM THEREIN.
19. SUBMISSION TO JURISDICTION. Grantor hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Security
Agreement, or for recognition and enforcement of any judgement in respect
thereof, to the
non-exclusive general jurisdiction of the federal and state courts sitting in
the State of New York,
and the appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives
any objection that it may now or hereafter have to the venue of any such
action or proceeding in
any such court or that such action or proceeding was brought in an
inconvenient court and agrees
not to plead or claim the same;
(iii) agrees that service of process in any such action or proceeding
may be effected by
mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail),
postage prepaid, to Grantor at its address set forth in Section 10.2 of the
Credit Agreement or at
such other address of which Collateral Agent shall have been notified
pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other
manner permitted by law or shall limit the right to ▇▇▇ in any other
jurisdiction.
20. SECTION TITLES. The Section titles contained in this Security
Agreement are and
shall be without substantive meaning or content of any kind whatsoever and
are not a part of the
agreement between the parties hereto.
21. NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the
negotiation and drafting of this Security Agreement. In the event an
ambiguity or question of
intent or interpretation arises, this Security Agreement shall be construed
as if drafted jointly by
the parties hereto and no presumption or burden of proof shall arise
favoring or disfavoring any
party by virtue of the authorship of any provisions of this Security
Agreement.
22. ADVICE OF COUNSEL. Each of the parties represents to each
other party hereto that
it has discussed this Security Agreement and, specifically, the provisions
of Section 18 and
Section 19, with its counsel.
23. BENEFIT OF SECURED PARTIES. All Liens granted or contemplated
hereby shall
be for the benefit of Collateral Agent and Secured Parties, and, subject to
the rights of the
Indenture Trustee, all proceeds or payments realized from Collateral in
accordance herewith shall
be applied to the Secured Obligations in accordance with the terms of the
Collateral Agency
Agreement and the Transaction Documents.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Security Agreement to
be executed and delivered by its duly authorized officer as of the date first
set forth above.
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President, Chief Financial
Officer and Treasurer
TORONTO DOMINION (TEXAS), INC.,
as Collateral Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE I to SECURITY AGREEMENT
FILING JURISDICTIONS
Secretary of State, Connecticut
Secretary of State, Maine
Secretary of State, New Hampshire
Secretary of State, New York
Secretary of State, Vermont
SCHEDULE II to SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING COLLATERAL
I. Chief Executive Office and principal place of business of Grantor:
General ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
II. Corporate Offices of Grantor:
General ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
III. Warehouses:
None; Collateral stored at locations listed in IV below.
IV. Other Premises at which Collateral is Stored or Located:
Ascutney Service Center
▇▇▇▇▇ ▇▇▇, ▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
St. Albans Service Center
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Bradford Service Center
▇▇▇▇▇ ▇▇, ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
St. Johnsbury Service Center
Box ▇▇ ▇▇▇▇▇ ▇
▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Brattleboro Service Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Sunderland Service Center
▇▇ ▇, ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Electrical Maint. Facility
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Systems ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Engineering Building
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Wales Street
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
General ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Middlebury Service Center
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Royalton Service Center
▇▇ ▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Poultney Service Center
▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Springfield Service Center
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Rutland District Service Center
▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
St. Albans Commercial ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
V. Locations of Records Concerning Collateral:
General ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Engineering Building
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Systems ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Rutland District Service Center
▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
