Exhibit 4.1
CONFORMED COPY
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MOODY'S CORPORATION
$300,000,000
4.98% Series 2005-1 Senior Unsecured Notes due 2015
$700,000,000 Shelf Amount
Senior Unsecured Notes Issuable in Series
________________
NOTE PURCHASE AGREEMENT
________________
Dated as of September 30, 2005
<PAGE>
TABLE OF CONTENTS
-----------------
PAGE
----
1. AUTHORIZATION OF NOTES.
..................................................1
1.1 AMOUNT;
ESTABLISHMENT OF SERIES..................................1
1.2
LEGEND...........................................................2
2. SALE AND PURCHASE OF NOTES.
..............................................2
3. CLOSING.
.................................................................2
4. CONDITIONS TO CLOSING.
...................................................3
4.1
REPRESENTATIONS AND
WARRANTIES...................................3
4.2
PERFORMANCE; NO
DEFAULT..........................................3
4.3 COMPLIANCE
CERTIFICATES..........................................3
4.4 OPINIONS
OF COUNSEL..............................................3
4.5 PURCHASE
PERMITTED BY APPLICABLE LAW, ETC........................3
4.6 SALE OF
OTHER NOTES..............................................4
4.7 PAYMENT OF
SPECIAL COUNSEL FEES..................................4
4.8 PRIVATE
PLACEMENT NUMBER.........................................4
4.9 CHANGES IN
CORPORATE STRUCTURE...................................4
4.10
PROCEEDINGS AND
DOCUMENTS........................................4
5. REPRESENTATIONS AND
WARRANTIES OF THE COMPANY. ...........................4
5.1
ORGANIZATION; POWER AND
AUTHORITY................................4
5.2
AUTHORIZATION,
ETC...............................................4
5.3
DISCLOSURE.......................................................5
5.4
ORGANIZATION AND OWNERSHIP OF SHARES OF
SUBSIDIARIES.............5
5.5 FINANCIAL
STATEMENTS.............................................5
5.6 COMPLIANCE
WITH LAWS, OTHER INSTRUMENTS, ETC.....................5
5.7
GOVERNMENTAL AUTHORIZATIONS,
ETC.................................6
5.8
LITIGATION; OBSERVANCE OF STATUTES AND
ORDERS....................6
5.9
TAXES............................................................6
5.10
TITLE TO PROPERTY;
LEASES........................................6
5.11
LICENSES, PERMITS,
ETC...........................................6
5.12
COMPLIANCE WITH
ERISA............................................7
5.13
PRIVATE OFFERING BY THE
COMPANY..................................7
5.14
USE
OF PROCEEDS; MARGIN REGULATIONS..............................7
5.15
EXISTING
INDEBTEDNESS............................................8
5.16
FOREIGN ASSETS CONTROL REGULATIONS,
ETC..........................8
5.17
STATUS UNDER CERTAIN
STATUTES....................................8
6. REPRESENTATIONS OF THE
PURCHASERS. .......................................8
6.1 PURCHASE
FOR INVESTMENT..........................................8
6.2 ACCREDITED
INVESTOR..............................................9
6.3 SOURCE OF
FUNDS..................................................9
7. INFORMATION AS TO COMPANY.
..............................................10
7.1 FINANCIAL
AND BUSINESS INFORMATION..............................10
7.2 OFFICER'S
CERTIFICATE...........................................12
7.3
INSPECTION......................................................12
8. PREPAYMENT OF THE NOTES.
................................................12
8.1
MATURITY........................................................12
8.2 OPTIONAL
PREPAYMENTS WITH MAKE-WHOLE AMOUNT.....................12
8.3 ALLOCATION
OF PARTIAL PREPAYMENTS...............................13
8.4 MATURITY;
SURRENDER, ETC........................................13
8.5 PURCHASE
OF NOTES...............................................13
8.6 MAKE-WHOLE
AMOUNT...............................................13
9. AFFIRMATIVE COVENANTS.
..................................................14
9.1 COMPLIANCE
WITH LAW.............................................14
9.2
INSURANCE.......................................................15
9.3
MAINTENANCE OF
PROPERTIES.......................................15
9.4 PAYMENT OF
TAXES................................................15
9.5 CORPORATE
EXISTENCE, ETC........................................15
9.6 SUBSIDIARY
GUARANTORS...........................................15
10. NEGATIVE COVENANTS.
.....................................................16
10.1
TRANSACTIONS WITH
AFFILIATES....................................16
10.2
MERGER, CONSOLIDATION,
ETC......................................16
10.3
DISPOSITION OF
ASSETS...........................................16
10.4
LIMITATION ON
LIENS.............................................17
10.5
LIMITATION ON SALE AND LEASEBACK
TRANSACTIONS...................18
10.6
TERRORISM SANCTIONS
REGULATIONS.................................19
11. EVENTS OF DEFAULT.
......................................................19
12. REMEDIES ON DEFAULT, ETC.
...............................................21
12.1
ACCELERATION....................................................21
12.2
OTHER
REMEDIES..................................................21
12.3
RESCISSION......................................................21
12.4
NO
WAIVERS OR ELECTION OF REMEDIES, EXPENSES, ETC...............21
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF
NOTES. ...........................22
13.1
REGISTRATION OF
NOTES...........................................22
13.2
TRANSFER AND EXCHANGE OF
NOTES..................................22
13.3
REPLACEMENT OF
NOTES............................................22
14. PAYMENTS ON NOTES.
......................................................23
14.1
PLACE OF
PAYMENT................................................23
14.2
HOME
OFFICE PAYMENT.............................................23
15. EXPENSES, ETC.
..........................................................23
15.1
TRANSACTION
EXPENSES............................................23
15.2
SURVIVAL........................................................24
16. SURVIVAL OF REPRESENTATIONS AND
WARRANTIES; ENTIRE AGREEMENT. ...........24
17. AMENDMENT AND WAIVER.
...................................................24
17.1
REQUIREMENTS....................................................24
17.2
SOLICITATION OF HOLDERS OF
NOTES................................24
17.3
BINDING EFFECT,
ETC.............................................25
17.4
NOTES HELD BY COMPANY,
ETC......................................25
18. NOTICES.
................................................................25
19. REPRODUCTION OF DOCUMENTS.
..............................................25
20. CONFIDENTIAL INFORMATION.
...............................................26
21. SUBSTITUTION OF PURCHASER.
..............................................26
22. MISCELLANEOUS.
..........................................................27
22.1
SUCCESSORS AND
ASSIGNS..........................................27
22.2
PAYMENTS DUE ON NON-BUSINESS
DAYS...............................27
22.3
SEVERABILITY....................................................27
22.4
CONSTRUCTION....................................................27
22.5
COUNTERPARTS....................................................27
22.6
GOVERNING
LAW...................................................27
SCHEDULE A to the Note Purchase Agreement
- Information Relating
to Purchasers
Signatory to the Note Purchaser
Agreement
SCHEDULE B -
Defined Terms
SCHEDULE 4.9 - Changes in
Corporate Structure
SCHEDULE 5.3 - Disclosure
Materials
SCHEDULE 5.4 - Subsidiaries of
the Company and
Ownership of Subsidiary Stock
SCHEDULE 5.5 - Financial
Statements
SCHEDULE 5.8 - Certain
Litigation
SCHEDULE 5.11 - Licenses,
Permits, etc.
SCHEDULE 5.14 - Use of
Proceeds
SCHEDULE 5.15 - Outstanding
Indebtedness
EXHIBIT 1.1(a) - Form of Series
2005-1 Note
EXHIBIT 1.1(b) - Form of
Supplement
EXHIBIT 4.4(a) - Form of Opinion
of Special Counsel to Company
EXHIBIT 4.4(b) - Form of Opinion
of Special Counsel to Purchasers
EXHIBIT 4.11 - Form of
Subsidiary Guarantee
<PAGE>
MOODY'S CORPORATION
99 Church Street
New York, New York 10007
$300,000,000
4.98% Series 2005-1 Senior Unsecured Notes due 2015
$700,000,000 Shelf Amount
Senior Unsecured Notes Issuable in Series
As of September 30, 2005
TO THE PURCHASERS WHOSE NAMES APPEAR IN THE
ACCEPTANCE FORM AT THE END HEREOF:
Ladies and Gentlemen:
MOODY'S CORPORATION, a Delaware corporation (the "Company"),
agrees
with each of the purchasers whose names
appear in the acceptance form at the
end hereof (each, a "Purchaser" and,
collectively, the "Purchasers") as
follows:
1.
AUTHORIZATION OF NOTES.
1.1 AMOUNT;
ESTABLISHMENT OF SERIES.
The Company will authorize the issue and sale of $300,000,000
aggregate principal amount of its 4.98%
Series 2005-1 Senior Unsecured Notes
due 2015 (the "Series 2005-1 Notes")
pursuant to this Agreement. The Company
may, from time to time until September 30,
2010, in its sole discretion but
subject to the terms hereof, authorize the
issue and sale of one or more
additional series of Notes (each a "Series"
of Notes) in an aggregate principal
amount of up to $700,000,000 (which amount
is in addition to the $300,000,000
aggregate principal amount of Series 2005-1
Notes) under the provisions of this
Agreement pursuant to a Supplement (as
defined herein). As used herein, the
term "Notes" includes the Series 2005-1
Notes and any Series of additional
Notes, and any other Notes issued in
substitution therefor pursuant to Section
13. The Series 2005-1 Notes shall be
substantially in the form set out in
Exhibit 1.1(a), with such changes
therefrom, if any, as may be approved by each
Purchaser and the Company. Certain
capitalized terms used in this Agreement are
defined in Schedule B; references to a
"Schedule" or an "Exhibit" are, unless
otherwise specified, to a Schedule or an
Exhibit attached to this Agreement.
Each Series of Notes, other than the Series 2005-1 Notes, will
be
issued pursuant to a supplement to this
Agreement (a "Supplement"), such
Supplement substantially in the form of
Exhibit 1.1(b), and will be subject to
the following terms and conditions:
(a) the designation of each Series of Notes shall distinguish
the Notes of one Series from the Notes of
all other Series;
(b) the Notes of each Series shall rank pari passu with each
other Series of the Notes and at least pari
passu with the Company's other
outstanding Indebtedness, except for such
Indebtedness which is preferred as a
result of being secured (but then only to
the extent of such security) or by
operation of bankruptcy, insolvency or
similar laws of general application;
(c)
each Series of Notes shall be dated the date of issue,
bear interest at such rate or rates, mature
on such date or dates, be subject
to such prepayments on the dates and with
the Make-Whole Amounts, if any, as
are provided in the Supplement under which
such Notes are issued, and shall
have such additional or different
conditions precedent to closing and such
additional or different representations and
warranties or other terms and
provisions as shall be specified in such
Supplement;
(d) any
additional covenants, Defaults, Events of Defaults,
rights or similar provisions that are added
by a Supplement for the benefit of
the Series of Notes to be issued pursuant
to such Supplement shall apply to all
outstanding Notes, whether or not the
Supplement so provides, and shall be
deemed to be a part of, and contained in,
this Agreement; and
(e) except to the extent provided in Subsection (c) above,
all of the provisions of this Agreement
shall apply to the Notes of each
Series.
The Purchasers of the Series 2005-1 Notes are under no obligation
to
purchase any subsequent Series of
Notes.
Payment of the principal of, Make-Whole Amount (if any) and
interest
on the Notes shall be guaranteed by the
Subsidiary Guarantors as contemplated
by Section 9.6 and as provided in the
Subsidiary Guarantees.
1.2
LEGEND.
Subject to the next succeeding paragraph, each Note shall bear
a
legend substantially as follows (until such
time as the Company shall
reasonably agree that such legend or any
portion thereof is no longer necessary
or advisable):
THIS NOTE HAS BEEN ACQUIRED WITHOUT A VIEW TO DISTRIBUTION AND HAS
NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), OR
UNDER
STATE SECURITIES LAWS. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THIS NOTE MAY BE MADE UNLESS
(A)
REGISTERED OR EXEMPT FROM REGISTRATION UNDER THE ACT AND
APPLICABLE
STATE SECURITIES LAWS AND (B) THE CONDITIONS CONTAINED IN THE
NOTE
PURCHASE AGREEMENT ARE SATISFIED.
If at any time any holder of a Note shall surrender such Note
for
registration of transfer or exchange
pursuant to Section 13.2, and shall
concurrently provide the Company with a
legal opinion of counsel to such holder
(which may be in-house counsel), in form
and substance reasonably satisfactory
to the Company, to the effect that such
Note may at such time be transferred by
such holder (to a Person not an Affiliate
(as defined in Rule 144 under the
Securities Act) of the Company and who has
not been an Affiliate of the Company
during the preceding three months) pursuant
to the requirements of paragraph
(k) of Rule 144 under the Securities Act,
the new Note or Notes to be executed
and delivered as provided in Section 13.2
shall not contain the legend
specified above.
2. SALE
AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the
Company
will issue and sell to each Purchaser and
each Purchaser will purchase from the
Company, at the Closing provided for in
Section 3, the Series 2005-1 Notes in
the principal amount specified opposite
such Purchaser's name in Schedule A at
the purchase price of 100% of the principal
amount thereof. The Purchasers'
obligations hereunder are several and not
joint obligations and no Purchaser
shall have any liability to any Person for
the performance or non-performance
of any obligation by any other Purchaser
hereunder.
3.
CLOSING.
The sale and purchase of the Series 2005-1 Notes to be purchased
by
each Purchaser shall occur at the offices
of Milbank, Tweed, Hadley & McCloy
LLP, One Chase Manhattan Plaza, New York,
New York 10005, at 10:00 a.m., New
York City time, at a closing (the
"Closing") on September 30, 2005. At the
Closing the Company will deliver to each
Purchaser the Series 2005-1 Notes to
be purchased by such Purchaser in the form
of a single Series 2005-1 Note (or
such greater number of Series 2005-1 Notes
in denominations of at least
$100,000 as such Purchaser may request)
dated the date of the Closing and
registered in such Purchaser's name (or in
the name of such Purchaser's
nominee), against delivery by such
Purchaser to the Company or its order of
immediately available funds in the amount
of the purchase price therefor by
wire transfer of immediately available
funds for the account of Moody's
Corporation to account number 323233244 at
JP Morgan Chase Bank, N.A. in New
York, New York, ABA #021-000-021. If at the
Closing the Company shall fail to
tender such Series 2005-1 Notes to any
Purchaser as provided above in this
Section 3, or any of the conditions
specified in Section 4 shall not have been
fulfilled to such Purchaser's satisfaction,
such Purchaser shall, at such
Purchaser's election, be relieved of all
further obligations under this
Agreement, without thereby waiving any
rights such Purchaser may have by reason
of such failure or such nonfulfillment.
4.
CONDITIONS TO CLOSING.
Each Purchaser's obligation to purchase and pay for the Series
2005-1
Notes to be sold to such Purchaser at the
Closing is subject to the fulfillment
to such Purchaser's satisfaction, prior to
or at the Closing, of the following
conditions:
4.1
REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company in this
Agreement
shall be correct when made and at the time
of the Closing.
4.2
PERFORMANCE; NO DEFAULT.
The Company shall have performed and complied with all agreements
and
conditions contained in this Agreement
required to be performed or complied
with by it prior to or at the Closing and
after giving effect to the issue and
sale of the Series 2005-1 Notes (and the
application of the proceeds thereof as
contemplated by Schedule 5.14) no Default
or Event of Default shall have
occurred and be continuing.
4.3 COMPLIANCE
CERTIFICATES.
(a) Officer's Certificate. The Company shall have delivered
to such Purchaser an Officer's Certificate,
dated the date of the Closing,
certifying that the conditions specified in
Sections 4.1, 4.2 and 4.9 have been
fulfilled.
(b) Secretary's Certificate. The Company shall have delivered
to such Purchaser a certificate of its
Secretary or any Assistant Secretary,
dated the date of Closing, certifying as to
the resolutions attached thereto
and other corporate proceedings relating to
the authorization, execution and
delivery of the Series 2005-1 Notes and
this Agreement.
4.4 OPINIONS
OF COUNSEL.
Such Purchaser shall have received opinions in form and
substance
satisfactory to such Purchaser, dated the
date of the Closing (a) from Skadden,
Arps, Slate, Meagher & Flom LLP,
special counsel for the Company, covering the
matters set forth in Exhibit 4.4(a) and
covering such other matters incident to
the transactions contemplated hereby as
such Purchaser or the Purchasers'
counsel may reasonably request (and the
Company hereby instructs its counsel to
deliver such opinion to the Purchasers) and
(b) from Milbank, Tweed, Hadley &
McCloy LLP, the Purchasers' special New
York counsel in connection with such
transactions, substantially in the form set
forth in Exhibit 4.4(b) and
covering such other matters incident to
such transactions as such Purchaser may
reasonably request.
4.5 PURCHASE
PERMITTED BY APPLICABLE LAW, ETC.
On the date of the Closing such Purchaser's purchase of Series
2005-1
Notes shall (i) be permitted by the laws
and regulations of each jurisdiction
to which such Purchaser is subject, without
recourse to provisions (such as
Section 1405(a)(8) of the New York
Insurance Law) permitting limited
investments by insurance companies without
restriction as to the character of
the particular investment, (ii) not violate
any applicable law or regulation
(including, without limitation, Regulation
T, U or X of the Board of Governors
of the Federal Reserve System) and (iii)
not subject such Purchaser to any tax,
penalty or liability under or pursuant to
any applicable law or regulation,
which law or regulation was not in effect
on the date hereof. If requested by
such Purchaser, such Purchaser shall have
received an Officer's Certificate
from the Company certifying as to such
matters of fact as such Purchaser may
reasonably specify to enable such Purchaser
to determine whether such purchase
is so permitted.
4.6 SALE OF
OTHER NOTES.
Contemporaneously with the Closing the Company shall sell to
each
other Purchaser and each other Purchaser
shall purchase the Series 2005-1 Notes
to be purchased by it at the Closing as
specified in Schedule A.
4.7 PAYMENT OF
SPECIAL COUNSEL FEES.
Without limiting the provisions of Section 15.1, the Company
shall
have paid on or before the Closing the
fees, charges and disbursements of the
Purchasers' special counsel referred to in
Section 4.4(b) to the extent
reflected in a statement of such counsel
rendered to the Company at least one
Business Day prior to the Closing.
4.8 PRIVATE
PLACEMENT NUMBER.
A Private Placement number issued by Standard & Poor's CUSIP
Service
Bureau (in cooperation with the Securities
Valuation Office of the National
Association of Insurance Commissioners)
shall have been obtained.
4.9 CHANGES IN
CORPORATE STRUCTURE.
Except as specified in Schedule 4.9, the Company shall not have
changed its jurisdiction of incorporation
or been a party to any merger or
consolidation and shall not have succeeded
to all or any substantial part of
the liabilities of any other entity, at any
time following the date of the most
recent financial statements referred to in
Schedule 5.5.
4.10
PROCEEDINGS AND DOCUMENTS.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement
and all documents and instruments
incident to such transactions shall be
satisfactory to such Purchaser and the
Purchasers' special counsel, and such
Purchaser and such special counsel shall
have received all such counterpart
originals or certified or other copies of
such documents as such Purchaser or such
special counsel may reasonably
request.
5.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser that:
5.1
ORGANIZATION; POWER AND AUTHORITY.
The Company is a corporation duly organized, validly existing and
in
good standing under the laws of its
jurisdiction of incorporation, and is duly
qualified as a foreign corporation and is
in good standing in each jurisdiction
in which such qualification is required by
law, other than those jurisdictions
as to which the failure to be so qualified
or in good standing would not,
individually or in the aggregate,
reasonably be expected to have a Material
Adverse Effect. The Company has the
corporate power and authority to own or
hold under lease the properties it purports
to own or hold under lease, to
transact the business it transacts and
proposes to transact, to execute and
deliver this Agreement and the Notes and to
perform the provisions hereof and
thereof.
5.2
AUTHORIZATION, ETC.
This Agreement and the Notes have been duly authorized by all
necessary corporate action on the part of
the Company, and this Agreement
constitutes, and upon execution and
delivery thereof each Note will constitute,
a legal, valid and binding obligation of
the Company enforceable against the
Company in accordance with its terms,
except as such enforceability may be
limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or
other similar laws affecting the
enforcement of creditors' rights generally and
(ii) general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law).
5.3
DISCLOSURE.
The Company, through its agents, Citigroup Global Markets Inc.,
Goldman, Sachs & Co. and Morgan Stanley
& Co. Incorporated, has delivered or
made available to each Purchaser a copy of
a Confidential Offering Memorandum,
dated September 9, 2005 (the "Memorandum"),
relating to the transactions
contemplated hereby, together with copies
of the Company's Annual Report on
Form 10-K for the year ended December 31,
2004 and the Company's Quarterly
Report on Form 10-Q for the quarter ended
June 30, 2005 (collectively, the
"Exchange Act Reports"). Except as
disclosed in Schedule 5.3, this Agreement,
the Memorandum, the Exchange Act Reports,
the documents, certificates or other
writings identified in Schedule 5.3 and the
financial statements listed in
Schedule 5.5, taken as a whole, do not
contain any untrue statement of a
material fact or omit to state any material
fact necessary to make the
statements therein not misleading in light
of the circumstances under which
they were made. Except (i) as disclosed in
the Memorandum or in one of the
Exchange Act Reports, (ii) as expressly
described in Schedule 5.3, or in one of
the documents, certificates or other
writings identified therein or (iii) as
disclosed in the financial statements
listed in Schedule 5.5, since December
31, 2004, there has been no change in the
financial condition, operations,
business or properties of the Company or
any of its Subsidiaries except changes
that individually or in the aggregate would
not reasonably be expected to have
a Material Adverse Effect.
5.4
ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES.
(a) Schedule 5.4 is (except as noted therein) a complete and
correct list of the Company's Subsidiaries,
showing, as to each Subsidiary, the
correct name thereof, the jurisdiction of
its organization, the percentage of
shares of each class of its capital stock
or similar equity interests
outstanding owned by the Company and each
other Subsidiary, and whether, as of
the date of the Closing, such Subsidiary
shall be a Subsidiary Guarantor.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown
in Schedule 5.4 as being owned by the
Company and its Subsidiaries have been
validly issued, are fully paid and
nonassessable and are owned by the Company
or another Subsidiary free and clear
of any Lien (except as otherwise disclosed
in Schedule 5.4).
(c) Each
Subsidiary identified in Schedule 5.4 is a
corporation or other legal entity duly
organized, validly existing and in good
standing under the laws of its jurisdiction
of organization, and is duly
qualified as a foreign corporation or other
legal entity and is in good
standing in each jurisdiction in which such
qualification is required by law,
other than those jurisdictions as to which
the failure to be so qualified or in
good standing would not, individually or in
the aggregate, reasonably be
expected to have a Material Adverse Effect.
Each such Subsidiary has the
corporate or other power and authority to
own or hold under lease the
properties it purports to own or hold under
lease and to transact the business
it transacts and proposes to transact.
5.5 FINANCIAL
STATEMENTS.
The Company has delivered to each Purchaser copies of the
consolidated
financial statements of the Company
included in the Exchange Act Reports and
listed on Schedule 5.5. All of said
financial statements fairly present in all
material respects the combined financial
position of the Company as of the
respective dates thereof and the combined
results of its operations and cash
flows for the respective periods so
specified in conformity with GAAP (subject,
in the case of any interim financial
statements, to normal year-end
adjustments).
5.6 COMPLIANCE
WITH LAWS, OTHER INSTRUMENTS, ETC.
The execution, delivery and performance by the Company of this
Agreement and the Notes will not (i)
contravene, result in any breach of, or
constitute a default under, or result in
the creation of any Lien in respect of
any property of the Company or any
Subsidiary under, any indenture, mortgage,
deed of trust, loan, purchase or credit
agreement, lease, corporate charter or
by-laws, or any other Material agreement or
instrument to which the Company or
any Subsidiary is bound or by which the
Company or any Subsidiary or any of
their respective properties may be bound or
affected, (ii) conflict with or
result in a breach of any of the terms,
conditions or provisions of any order,
judgment, decree, or ruling of any court,
arbitrator or Governmental Authority
applicable to the Company or any Subsidiary
or (iii) violate any provision of
any statute or other rule or regulation of
any Governmental Authority
applicable to the Company or any
Subsidiary.
5.7
GOVERNMENTAL AUTHORIZATIONS, ETC.
No consent, approval or authorization of, or registration, filing
or
declaration with, any Governmental
Authority is required in connection with the
execution, delivery or performance by the
Company of this Agreement or the
Notes.
5.8
LITIGATION; OBSERVANCE OF STATUTES AND ORDERS.
(a) Except as disclosed in Schedule 5.8, there are no
actions, suits or proceedings pending or,
to the knowledge of the Company,
threatened against or affecting the Company
or any Subsidiary or any property
of the Company or any Subsidiary in any
court or before any arbitrator of any
kind or before or by any Governmental
Authority that, individually or in the
aggregate, would reasonably be expected to
have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default
under any order, judgment, decree or ruling
of any court, arbitrator or
Governmental Authority or is in violation
of any applicable law, ordinance,
rule or regulation (including without
limitation Environmental Laws) of any
Governmental Authority, which default or
violation, individually or in the
aggregate, would reasonably be expected to
have a Material Adverse Effect.
5.9 TAXES.
The Company and its Subsidiaries have filed all income tax
returns
that are required to have been filed in any
jurisdiction, and have paid all
taxes shown to be due and payable on such
returns and all other taxes and
assessments payable by them, to the extent
such taxes and assessments have
become due and payable and before they have
become delinquent, except for any
taxes and assessments (i) the amount of
which is not individually or in the
aggregate Material or (ii) the amount,
applicability or validity of which is
currently being contested in good faith by
appropriate proceedings and with
respect to which the Company or a
Subsidiary, as the case may be, has
established adequate reserves in accordance
with GAAP.
5.10
TITLE TO PROPERTY; LEASES.
The Company and its Subsidiaries have good and sufficient title
to
their respective Material properties,
including all such properties reflected
in the most recent audited balance sheet
referred to in Section 5.5 or
purported to have been acquired by the
Company or any Subsidiary after said
date (except as sold or otherwise disposed
of in the ordinary course of
business), in each case free and clear of
Liens prohibited by this Agreement,
except for those defects in title and Liens
that, individually or in the
aggregate, would not have a Material
Adverse Effect. All leases that the
Company or any Subsidiary is party to as
lessee and that individually or in the
aggregate are Material are valid and
subsisting and are in full force and
effect in all material respects.
5.11
LICENSES, PERMITS, ETC.
Except as disclosed in Schedule 5.11, the Company and its
Subsidiaries
own or possess all licenses, permits,
franchises, authorizations, patents,
copyrights, service marks, trademarks and
trade names, or rights thereto, that
are Material, without known conflict with
the rights of others, except for
those conflicts that, individually or in
the aggregate, would not have a
Material Adverse Effect.
5.12
COMPLIANCE WITH ERISA.
(a) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with
all applicable laws except for such
instances of noncompliance as have not
resulted in and could not reasonably be
expected to result in a Material Adverse
Effect. Neither the Company nor any
ERISA Affiliate has incurred any liability
pursuant to Title I or IV of ERISA
or the penalty or excise tax provisions of
the Code relating to employee
benefit plans (as defined in Section 3 of
ERISA), and no event, transaction or
condition has occurred or exists that would
reasonably be expected to result in
the incurrence of any such liability by the
Company or any ERISA Affiliate, or
in the imposition of any Lien on any of the
rights, properties or assets of the
Company or any ERISA Affiliate, in either
case pursuant to Title I or IV of
ERISA or to such penalty or excise tax
provisions or to Section 401(a)(29) or
412 of the Code, other than such
liabilities or Liens as would not be
individually or in the aggregate
Material.
(b) The present value of the aggregate benefit liabilities
under each of the Plans (other than
Multiemployer Plans), determined as of the
end of such Plan's most recently ended plan
year on the basis of the actuarial
assumptions specified for funding purposes
in such Plan's most recent actuarial
valuation report, did not exceed the
aggregate current value of the assets of
such Plan allocable to such benefit
liabilities. The term "benefit liabilities"
has the meaning specified in section 4001
of ERISA and the terms "current
value" and "present value" have the meaning
specified in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred
withdrawal liabilities (and are not subject
to contingent withdrawal
liabilities) under section 4201 or 4204 of
ERISA in respect of Multiemployer
Plans that individually or in the aggregate
are Material.
(d) The expected postretirement benefit obligation
(determined as of the last day of the
Company's most recently ended fiscal year
in accordance with Financial Accounting
Standards Board Statement No. 106,
without regard to liabilities attributable
to continuation coverage mandated by
section 4980B of the Code) of the Company
and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the
issuance and sale of the Notes hereunder
will not involve any transaction that
is subject to the prohibitions of section
406 of ERISA or in connection with
which a tax could be imposed pursuant to
section 4975(c)(1)(A)-(D) of the Code.
The representation by the Company to each
Purchaser in the first sentence of
this Section 5.12(e) is made in reliance
upon and subject to the accuracy of
such Purchaser's representation in Section
6.3 as to the sources of the funds
to be used to pay the purchase price of the
Notes to be purchased by the
Purchasers.
5.13
PRIVATE OFFERING BY THE COMPANY.
Neither the Company nor anyone acting on its behalf has offered
the
Notes or any similar securities for sale
to, or solicited any offer to buy any
of the same from, or otherwise approached
or negotiated in respect thereof
with, any person other than the Purchasers
and not more than 60 other
Accredited Investors, each of which has
been offered the Notes at a private
sale for investment. Neither the Company
nor anyone acting on its behalf has
taken, or will take, any action that would
subject the issuance or sale of the
Notes to the registration requirements of
Section 5 of the Securities Act or to
the registration requirements of any
securities or blue sky laws of any
applicable jurisdiction.
5.14
USE OF PROCEEDS; MARGIN REGULATIONS.
The Company will apply the proceeds of the sale of the Notes as
set
forth in Schedule 5.14. No part of the
proceeds from the sale of the Notes
hereunder will be used, directly or
indirectly, for the purpose of buying or
carrying any margin stock within the
meaning of Regulation U of the Board of
Governors of the Federal Reserve System (12
CFR 221), or for the purpose of
buying or carrying or trading in any
securities under such circumstances as to
involve the Company in a violation of
Regulation X of said Board (12 CFR 224)
or to involve any broker or dealer in a
violation of Regulation T of said Board
(12 CFR 220). Margin stock does not
constitute more than 5% of the value of the
consolidated assets of the Company and its
Subsidiaries and the Company does
not have any present intention that margin
stock will constitute more than 5%
of the value of such assets. As used in
this Section, the terms "margin stock"
and "purpose of buying or carrying" shall
have the meanings assigned to them in
said Regulation U.
5.15
EXISTING INDEBTEDNESS.
Except as described therein, Schedule 5.15 sets forth a complete
and
correct list of all outstanding
Indebtedness of the Company and its
Subsidiaries as of September 29, 2005,
since which date there has been no
Material change in the amounts, interest
rates, sinking funds, installment
payments or maturities of the Indebtedness
of the Company or its Subsidiaries.
Neither the Company nor any Subsidiary is
in default and no waiver of default
is currently in effect, in the payment of
any principal or interest on any
Indebtedness of the Company or such
Subsidiary and no event or condition exists
with respect to any Indebtedness of the
Company or any Subsidiary the
outstanding principal amount of which
exceeds $5,000,000 that would permit (or
that with notice or the lapse of time, or
both, would permit) one or more
Persons to cause such Indebtedness to
become due and payable before its stated
maturity or before its regularly scheduled
dates of payment.
5.16
FOREIGN ASSETS CONTROL REGULATIONS, ETC.
(a) Neither the sale of the Notes by the Company hereunder
nor its use of the proceeds thereof will
violate the Trading with the Enemy
Act, as amended, or any of the foreign
assets control regulations of the United
States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any
enabling legislation or executive order
relating thereto.
(b) Neither the Company nor any Subsidiary (i) is a Person
described or designated in the Specially
Designated Nationals and Blocked
Persons List of the Office of Foreign
Assets Control or in Section 1 of the
Anti-Terrorism Order or (ii) engages in any
dealings or transactions with any
such Person. The Company and its
Subsidiaries are in compliance, in all
material respects, with the USA Patriot
Act.
(c) No part of the proceeds from the sale of the Notes
hereunder will be used, directly or
indirectly, for any payments to any
governmental official or employee,
political party, official of a political
party, candidate for political office, or
anyone else acting in an official
capacity, in order to obtain, retain or
direct business or obtain any improper
advantage, in violation of the United
States Foreign Corrupt Practices Act of
1977, as amended, assuming in all cases
that such Act applies to the Company.
5.17
STATUS UNDER CERTAIN STATUTES.
Neither the Company nor any Subsidiary is subject to regulation
under
the Investment Company Act of 1940, as
amended, the Public Utility Holding
Company Act of 1935, as amended, the ICC
Termination Act, as amended, or the
Federal Power Act, as amended.
6.
REPRESENTATIONS OF THE PURCHASERS.
6.1 PURCHASE
FOR INVESTMENT.
Each Purchaser represents that such Purchaser is purchasing the
Notes
for its own account or for one or more
separate accounts maintained by it or
for the account of one or more pension or
trust funds and not with a view to
the distribution thereof, provided that the
disposition of such Purchaser's or
their property shall at all times be within
such Purchaser's or their control.
Each Purchaser understands that the Notes
have not been registered under the
Securities Act and may be resold only if
registered pursuant to the provisions
of the Securities Act or if an exemption
from registration is available, except
under circumstances where neither such
registration nor such an exemption is
required by law, and that the Company is
not required to register the Notes.
Each Purchaser further represents and
warrants that such Purchaser (a) will not
sell, transfer or otherwise dispose of the
Notes or any interest therein except
in a transaction exempt from or not subject
to the registration requirements of
the Securities Act, (b) was given the
opportunity to access such information
regarding the Company as such Purchaser has
requested and (c) was provided with
the Memorandum and the Exchange Act
Reports. Each Purchaser acknowledges that,
subject to the provisions of Section 1.2
hereof, the Notes will bear a
restrictive legend substantially in the
form of Exhibit 1.1(a), in the case of
a Series 2005-1 Note, or of Annex A to
Exhibit 1.1(b), in the case of a Note of
any other Series.
6.2 ACCREDITED
INVESTOR.
Each Purchaser represents that such Purchaser is an Accredited
Investor acting for its own account (and
not for the account of others) or as a
fiduciary or agent for others (which others
are also Accredited Investors).
6.3 SOURCE OF
FUNDS.
Each Purchaser represents that at least one of the following
statements is an accurate representation as
to each source of funds (a
"Source") to be used by such Purchaser to
pay the purchase price of the Notes
to be purchased by such Purchaser
hereunder:
(a) the Source is an "insurance company general account" (as
the term is defined in PTE 95-60 (issued
July 12, 1995)) in respect of which
the reserves and liabilities (as defined by
the annual statement for life
insurance companies approved by the
National Association of Insurance
Commissioners (the "NAIC Annual
Statement")) for the general account
contract(s) held by or on behalf of any
employee benefit plan together with the
amount of the reserves and liabilities for
the general account contract(s) held
by or on behalf of any other employee
benefit plans maintained by the same
employer (or affiliate thereof as defined
in PTE 95-60) or by the same employee
organization in the general account do not
exceed 10% of the total reserves and
liabilities of the general account
(exclusive of separate account liabilities)
plus surplus as set forth in the NAIC
Annual Statement filed with such
Purchaser's state of domicile; or
(b) the Source is a separate account that is maintained
solely in connection with such Purchaser's
fixed contractual obligations under
which the amounts payable, or credited, to
any employee benefit plan (or its
related trust) that has any interest in
such separate account (or to any
participant or beneficiary of such plan
(including any annuitant)) are not
affected in any manner by the investment
performance of the separate account;
or
(c) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE
90-1 (issued January 29, 1990), or
(ii) a bank collective investment fund,
within the meaning of the PTE 91-38
(issued July 12, 1991) and, except as
disclosed by such Purchaser to the
Company in writing pursuant to this
paragraph (c), no employee benefit plan or
group of plans maintained by the same
employer or employee organization
beneficially owns more than 10% of all
assets allocated to such pooled separate
account or collective investment fund;
or
(d) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM
Exemption) managed by a "qualified
professional asset manager" or "QPAM"
(within the meaning of Part V of the QPAM
Exemption), no employee benefit plan's
assets that are included in such
investment fund, when combined with the
assets of all other employee benefit
plans established or maintained by the same
employer or by an affiliate (within
the meaning of Section V(c)(1) of the QPAM
Exemption) of such employer or by
the same employee organization and managed
by such QPAM, exceed 20% of the
total client assets managed by such QPAM,
the conditions of Part I(c) and (g)
of the QPAM Exemption are satisfied,
neither the QPAM nor a person controlling
or controlled by the QPAM (applying the
definition of "control" in Section V(e)
of the QPAM Exemption) owns a 5% or more
interest in the Company and (i) the
identity of such QPAM and (ii) the names of
all employee benefit plans whose
assets are included in such investment fund
have been disclosed to the Company
in writing pursuant to this paragraph (d);
or
(e) the Source constitutes assets of a "plan(s)" (within the
meaning of Section IV of PTE 96-23 (the
"INHAM Exemption")) managed by an
"in-house asset manager" or "INHAM" (within
the meaning of Part IV of the INHAM
Exemption), the conditions of Part I(a),
(g) and (h) of the INHAM Exemption are
satisfied, neither the INHAM nor a person
controlling or controlled by the
INHAM (applying the definition of "control"
in Section IV(h) of the INHAM
Exemption) owns a 5% or more interest in
the Company and (i) the identity of
such INHAM and (ii) the name(s) of the
employee benefit plan(s) whose assets
constitute the Source have been disclosed
to the Company in writing pursuant to
this paragraph (e); or
(f) the Source is a governmental plan; or
(g) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of
one or more employee benefit plans,
each of which has been identified to the
Company in writing pursuant to this
paragraph (g); or
(h) the Source does not include assets of any employee
benefit plan, other than a plan exempt from
the coverage of ERISA.
As used in this Section 6.3, the terms
"employee benefit plan", "governmental
plan", and "separate account" shall have
the respective meanings assigned to
such terms in Section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1 FINANCIAL
AND BUSINESS INFORMATION.
The Company shall deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements - within 60 days after the end of
each quarterly fiscal period in each fiscal
year of the Company (other than the
last quarterly fiscal period of each such
fiscal year), duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of operations and cash
flows of the Company and its Subsidiaries, for such quarter and
(in
the case of the second and third quarters) for the portion of
the
fiscal year ending with such quarter, setting forth in each case
in
comparative form the figures for the corresponding periods in
the
previous fiscal year, all in reasonable detail, prepared in
accordance
with GAAP applicable to quarterly financial statements generally,
and
certified by a Senior Financial Officer as fairly presenting, in
all
material respects, the financial position of the companies
being
reported on and their results of operations and cash flows, subject
to
changes resulting from year-end adjustments, provided that
delivery
within the time period specified above of copies of the
Company's
Quarterly Report on Form 10-Q ("Form 10-Q") prepared in
compliance
with the requirements therefor and filed with the Securities
and
Exchange Commission shall be deemed to satisfy the requirements
of
this Section 7.1(a), provided, further, that the Company shall
be
deemed to have made such delivery of such Form 10-Q if it shall
have
timely made such Form 10-Q available on "EDGAR" and on its home
page
on the worldwide web (at the date of this Agreement located at:
www.moodys.com) and shall have given each Purchaser prior notice
of
such availability on EDGAR and on its home page in connection
with
each delivery (such availability and notice thereof being referred
to
as "Electronic Delivery");
(b) Annual Statements - within 120 days after the end of each
fiscal year of the Company, duplicate
copies of;
(i) a consolidated balance sheet of the Company and
its Subsidiaries, as at the end of such year, and
(ii) consolidated statements of operations,
shareholders' equity and cash flows of the Company and its
Subsidiaries, for such year, setting forth in each case in
comparative
form the figures for the previous fiscal year, all in
reasonable
detail, prepared in accordance with GAAP, and accompanied by an
opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall state that
such
financial statements present fairly, in all material respects,
the
financial position of the companies being reported upon and
their
results of operations and cash flows and have been prepared in
conformity with GAAP, and that the examination of such accountants
in
connection with
such financial statements has been made in accordance
with generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the
circumstances,
provided that the delivery within the time period specified above
of
the Company's Annual Report on Form 10-K ("Form 10-K") for such
fiscal
year (together with the Company's annual report to shareholders,
if
any, prepared pursuant to Rule 14a-3 under the Exchange Act)
prepared
in accordance with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to satisfy
the
requirements of this Section 7.1(b), provided, further, that
the
Company shall be deemed to have made such delivery of such Form
10-K
if it shall have timely made Electronic Delivery thereof;
(c) SEC and Other Reports - upon the request of any such
holder after being notified by the Company
of any of the following (and the
Company hereby agrees to promptly notify
each holder of a Note of any of the
following), one copy of (i) each financial
statement, report, notice or proxy
statement sent by the Company or any
Subsidiary to public securities holders
generally, and (ii) each regular or
periodic report, each registration
statement that shall have become effective
(without exhibits except as
expressly requested by such holder), and
each final prospectus and all
amendments thereto filed by the Company or
any Subsidiary with the Securities
and Exchange Commission;
(d) Notice of Default or Event of Default - promptly, and in
any event within five days after a
Responsible Officer becoming aware of the
existence of any Default or Event of
Default, a written notice specifying the
nature and period of existence thereof and
what action the Company is taking or
proposes to take with respect thereto;
(e) ERISA Matters - promptly, and in any event within five
days after a Responsible Officer becoming
aware of any of the following, a
written notice setting forth the nature
thereof and the action, if any, that
the Company or an ERISA Affiliate proposes
to take with respect thereto:
(i) with respect to any Plan, any reportable event,
as defined in section 4043(b) of ERISA and the regulations
thereunder,
for which notice thereof has not been waived pursuant to such
regulations as in effect on the date hereof; or
(ii) the taking by the PBGC of steps to institute, or
the threatening by the PBGC of the institution of, proceedings
under
section 4042 of ERISA for the termination of, or the appointment of
a
trustee to administer, any Plan, or the receipt by the Company or
any
ERISA Affiliate of a notice from a Multiemployer Plan that such
action
has been taken by the PBGC with respect to such Multiemployer Plan;
or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by the Company or any
ERISA
Affiliate pursuant to Title I or IV of ERISA or the penalty or
excise
tax provisions of the Code relating to employee benefit plans, or
in
the imposition of any Lien on any of the rights, properties or
assets
of the Company or any ERISA Affiliate pursuant to Title I or IV
of
ERISA or such penalty or excise tax provisions, if such liability
or
Lien, taken together with any other such liabilities or Liens
then
existing, would reasonably be expected to have a Material
Adverse
Effect;
(f) Supplements to Agreement - in the event that any
additional Series of Notes is to be issued
under this Agreement (whether or not
an initial Purchaser hereunder is a
purchaser thereof), promptly, and in any
event within fifteen Business Days after
execution and delivery thereof, a true
and complete copy of the Supplement
pursuant to which such Notes are to be, or
were, issued; and
(g) Requested Information - with reasonable promptness, (i)
such other data and information relating to
the business, operations, affairs,
financial condition, assets or properties
of the Company or any of its
Subsidiaries or relating to the ability of
the Company to perform its
obligations hereunder and under the Notes
as from time to time may be
reasonably requested by any such holder of
Notes and (ii) to the extent
requested by a Purchaser in writing, copies
of the documents electronically
delivered under Sections 7.1(a)(ii) and
7.1(b)(ii) to such Purchaser.
7.2 OFFICER'S
CERTIFICATE.
Each set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or Section
7.1(b) hereof shall be accompanied by a
certificate of a Senior Financial Officer
setting forth (which, in the case of
Electronic Delivery of any such financial
statements, shall be by separate
concurrent delivery of such certificate to
each holder of Notes):
(a) Covenant Compliance - the information (including detailed
calculations) required in order to
establish whether the Company was in
compliance with the requirements of Section
10.3 through Section 10.5 hereof,
inclusive, as of the end of the quarterly
or annual period covered by the
statements then being furnished and as of
any other applicable dates of
determination (including with respect to
each such Section, where applicable,
the calculations of the maximum or minimum
amount or percentage, as the case
may be, permissible under the terms of such
Sections, and the calculation of
the amount or percentage then in
existence); and
(b) Event of Default - a statement that such officer has
reviewed the relevant terms hereof and has
made, or caused to be made, under
his or her supervision, a review of the
transactions and conditions of the
Company and its Subsidiaries from the
beginning of the quarterly or annual
period covered by the statements then being
furnished to the date of the
certificate and that such review shall not
have disclosed the existence during
such period of any condition or event that
constitutes a Default or an Event of
Default or, if any such condition or event
existed or exists (including,
without limitation, any such event or
condition resulting from the failure of
the Company or any Subsidiary to comply
with any Environmental Law), specifying
the nature and period of existence thereof
and what action the Company shall
have taken or proposes to take with respect
thereto.
7.3
INSPECTION.
The Company shall permit the representatives of each holder of
Notes
that is an Institutional Investor:
(a) No Default - if no Default or Event of Default then
exists, at the expense of such holder and
upon reasonable prior notice to the
Company, to visit the principal executive
office of the Company, to discuss the
affairs, finances and accounts of the
Company and its Subsidiaries with the
Company's officers, and, with the consent
of the Company (which consent will
not be unreasonably withheld) to visit the
other offices and properties of the
Company and each Subsidiary, all at such
reasonable times and as often as may
be reasonably requested in writing; and
(b) Default - if a Default or Event of Default then exists,
at the expense of the Company to visit and
inspect any of the offices or
properties of the Company or any
Subsidiary, to examine all their respective
books of account, records, reports and
other papers, to make copies and
extracts therefrom, and to discuss their
respective affairs, finances and
accounts with their respective officers and
independent public accountants (and
by this provision the Company authorizes
said accountants to discuss the
affairs, finances and accounts of the
Company and its Subsidiaries), all at
such times and as often as may be
requested.
8.
PREPAYMENT OF THE NOTES.
8.1
MATURITY.
As provided therein, the entire unpaid principal amount of the
Series
2005-1 Notes shall be due and payable on
September 30, 2015.
8.2 OPTIONAL
PREPAYMENTS WITH MAKE-WHOLE AMOUNT.
The Company may, at its option, upon notice as provided below,
prepay
at any time all, or from time to time any
part of, the Notes of any Series, in
an amount not less than 10% of the
aggregate principal amount of the Notes of
such Series to be prepaid then outstanding
in the case of a partial prepayment,
at 100% of the principal amount so prepaid,
plus the Make-Whole Amount
determined for the prepayment date with
respect to such principal amount of
each Note of the Series to be prepaid then
outstanding. The Company will give
each holder of Notes of the Series to be
prepaid written notice of each
optional prepayment under this Section 8.2
not less than 30 days and not more
than 60 days prior to the date fixed for
such prepayment. Each such notice
shall specify such date, the aggregate
principal amount of the Notes of the
Series to be prepaid on such date, the
principal amount of each Note of the
Series to be prepaid held by such holder
(determined in accordance with Section
8.3), and the interest to be paid on the
prepayment date with respect to such
principal amount being prepaid, and shall
be accompanied by a certificate of a
Senior Financial Officer as to the
estimated Make-Whole Amount due in
connection with such prepayment (calculated
as if the date of such notice were
the date of the prepayment), setting forth
the details of such computation. Two
Business Days prior to such prepayment, the
Company shall deliver to each
holder of Notes of the Series to be prepaid
a certificate of a Senior Financial
Officer specifying the calculation of such
Make-Whole Amount as of the
specified prepayment date.
8.3 ALLOCATION
OF PARTIAL PREPAYMENTS.
In the case of each partial prepayment of the Notes, the
principal
amount of the Notes of the Series to be
prepaid shall be allocated among all of
the Notes of such Series at the time
outstanding in proportion, as nearly as
practicable, to the respective unpaid
principal amounts thereof not theretofore
called for prepayment.
8.4 MATURITY;
SURRENDER, ETC.
In the case of each prepayment of Notes pursuant to this Section
8,
the principal amount of each Note to be
prepaid shall mature and become due and
payable on the date fixed for such
prepayment, together with interest on such
principal amount accrued to such date and
the applicable Make-Whole Amount, if
any. From and after such date, unless the
Company shall fail to pay such
principal amount when so due and payable,
together with the interest and
Make-Whole Amount, if any, as aforesaid,
interest on such principal amount
shall cease to accrue. Any Note paid or
prepaid in full shall be surrendered to
the Company and cancelled and shall not be
reissued, and no Note shall be
issued in lieu of any prepaid principal
amount of any Note.
8.5 PURCHASE
OF NOTES.
The Company will not and will not permit any Affiliate to
purchase,
redeem, prepay or otherwise acquire,
directly or indirectly, any of the
outstanding Notes of any Series except (a)
upon the payment or prepayment of
Notes of the same Series in accordance with
the terms of this Agreement and
such Notes or (b) pursuant to an offer to
purchase made by the Company or an
Affiliate pro rata to the holders of all
Notes of a particular Series at the
time outstanding upon the same terms and
conditions. Any such offer shall
provide each holder with sufficient
information to enable it to make an
informed decision with respect to such
offer, and shall remain open for at
least twenty Business Days. If the holders
of more than 50% of the principal
amount of the Notes of the Series to be
purchased then outstanding accept such
offer, the Company shall promptly notify
the remaining holders of Notes of the
same Series of such fact and the expiration
date for the acceptance by holders
of Notes of such Series of such offer shall
be extended by the number of days
necessary to give each such remaining
holder at least five Business Days from
its receipt of such notice to accept such
offer. The Company will promptly
cancel all Notes acquired by it or any
Affiliate pursuant to any payment,
prepayment or purchase of Notes pursuant to
any provision of this Agreement and
no Notes may be issued in substitution or
exchange for any such Notes.
8.6 MAKE-WHOLE
AMOUNT.
The term "MAKE-WHOLE AMOUNT" means, with respect to any Series
2005-1
Note, an amount equal to the excess, if
any, of the Discounted Value of the
Remaining Scheduled Payments with respect
to the Called Principal of such Note
over the amount of such Called Principal,
provided that the Make-Whole Amount
may in no event be less than zero. For the
purposes of determining the
Make-Whole Amount with respect to the
Series 2005-1 Notes, the following terms
have the following meanings:
"CALLED PRINCIPAL" means, with respect to any Series 2005-1 Note,
the
principal of such Note that is to be
prepaid pursuant to Section 8.2 or has
become or is declared to be immediately due
and payable pursuant to Section
12.1, as the context requires.
"DISCOUNTED VALUE" means, with respect to the Called Principal of
any
Series 2005-1 Note, the amount obtained by
discounting all Remaining Scheduled
Payments with respect to such Called
Principal from their respective scheduled
due dates to the Settlement Date with
respect to such Called Principal, in
accordance with accepted financial practice
and at a discount factor (applied
on the same periodic basis as that on which
interest on the Series 2005-1 Notes
is payable) equal to the Reinvestment Yield
with respect to such Called
Principal.
"REINVESTMENT YIELD" means, with respect to the Called Principal
of
any Series 2005-1 Note, 0.50% over the
yield to maturity implied by (i) the
yields reported, as of 10:00 A.M. (New York
City time) on the second Business
Day preceding the Settlement Date with
respect to such Called Principal, on the
display designated as Bloomberg Financial
Markets "Page PX1" (or such other
display as may replace Bloomberg Financial
Markets "Page PX1") for actively
traded U.S. Treasury securities having a
maturity equal to the Remaining
Average Life of such Called Principal as of
such Settlement Date, or (ii) if
such yields are not reported as of such
time or the yields reported as of such
time are not ascertainable, the Treasury
Constant Maturity Series Yields
reported, for the latest day for which such
yields have been so reported as of
the second Business Day preceding the
Settlement Date with respect to such
Called Principal, in U.S. Federal Reserve
Statistical Release H.15 (519) (or
any comparable successor publication) for
actively traded U.S. Treasury
securities having a constant maturity equal
to the Remaining Average Life of
such Called Principal as of such Settlement
Date. Such implied yield will be
determined, if necessary, by (a) converting
U.S. Treasury bill quotations to
bond-equivalent yields in accordance with
accepted financial practice and (b)
interpolating linearly between (1) the
actively traded "on the run" U.S.
Treasury security with the maturity closest
to and greater than the Remaining
Average Life and (2) the actively traded
"on the run" U.S. Treasury security
with the maturity closest to and less than
the Remaining Average Life.
"REMAINING AVERAGE LIFE" means, with respect to any Called
Principal,
the number of years (calculated to the
nearest one-twelfth year) obtained by
dividing (i) such Called Principal into
(ii) the sum of the products obtained
by multiplying (a) the principal component
of each Remaining Scheduled Payment
with respect to such Called Principal by
(b) the number of years (calculated to
the nearest one-twelfth year) that will
elapse between the Settlement Date with
respect to such Called Principal and the
scheduled due date of such Remaining
Scheduled Payment.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the
Called
Principal of any Series 2005-1 Note, all
payments of such Called Principal and
interest thereon that would be due after
the Settlement Date with respect to
such Called Principal if no payment of such
Called Principal were made prior to
its scheduled due date, provided that if
such Settlement Date is not a date on
which interest payments are due to be made
under the terms of the Series 2005-1
Notes, then the amount of the next
succeeding scheduled interest payment will
be reduced by the amount of interest
accrued to such Settlement Date and
required to be paid on such Settlement Date
pursuant to Section 8.2 or 12.1.
"SETTLEMENT DATE" means, with respect to the Called Principal of
any
Series 2005-1 Note, the date on which such
Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is
declared to be immediately due and
payable pursuant to Section 12.1, as the
context requires.
9.
AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
9.1 COMPLIANCE
WITH LAW.
The Company will and
will cause each of its Subsidiaries to comply
with all laws, ordinances or governmental
rules or regulations to which each of
them is subject, including, without
limitation, the USA Patriot Act and
Environmental Laws, and will obtain and
maintain in effect all licenses,
certificates, permits, franchises and other
governmental authorizations
necessary to the ownership of their
respective properties or to the conduct of
their respective businesses, in each case
to the extent necessary to ensure
that non-compliance with such laws, o
