of the Company or the Guarantor with respect to such Change of
Control transaction;
provided, however, that at the same time, and as a condition to the redemption
of the Securities, (i) the Trustee shall have received the proceeds from a draw
on the Letter of Credit as described in Section 11 and (ii) paid all other
amounts then due or payable under the Securities and this Indenture.
The determination made pursuant to the preceding clause (b) as to a redemption
amount shall be based upon the value of all cash and non-cash consideration that
is available to the holders of any Equity Interests of the Guarantor, directly
or indirectly, with respect to such Change of Control transaction (as set forth
in a valuation opinion of a nationally recognized accounting firm or investment
bank selected by the Company and, in the event that the valuation is expressed
as a range, the value shall be the midpoint of the range).
SECTION 10.6
PROVISIONS REGARDING LETTERS OF CREDIT.
(A)
ON OR PRIOR TO THE EFFECTIVE DATE, THE COMPANY SHALL DELIVER TO
THE TRUSTEE A LETTER OF CREDIT IN THE AMOUNT OF THE FIVE MILLION DOLLARS
($5,000,000.00) WHICH SHALL BE AVAILABLE TO BE DRAWN DOWN AT ANY TIME AFTER THE
ISSUANCE THEREOF AND THE TRUSTEE SHALL HAVE THE RIGHT TO DRAW DOWN SUCH LETTER
OF CREDIT AS SET FORTH HEREIN.
FOR PURPOSES OF THIS SECTION 10.6, THE TERM
"LETTER OF CREDIT" MEANS AN IRREVOCABLE, UNCONDITIONAL, TRANSFERABLE, CLEAN
SIGHT DRAFT LETTER OF CREDIT IN FAVOR OF THE TRUSTEE AND ENTITLING THE TRUSTEE
TO DRAW THEREON AS PROVIDED IN THIS SECTION 10.6 IN NEW YORK, NEW YORK (WHETHER
IN PERSON OR BY FACSIMILE), ISSUED IN U.S. DOLLARS BY A DOMESTIC ELIGIBLE
INSTITUTION OR THE U.S. AGENCY OR BRANCH OF A FOREIGN ELIGIBLE INSTITUTION.
FOR
PURPOSES OF THIS SECTION 10.6, "ELIGIBLE INSTITUTION"
MEANS A DEPOSITORY
INSTITUTION INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION THE SHORT TERM
UNSECURED DEBT OBLIGATIONS OR COMMERCIAL PAPER OF WHICH ARE RATED AT LEAST "A-1"
BY STANDARD & POOR'S RATINGS GROUP, "P-1" BY MOODY'S INVESTORS SERVICE, INC. AND
"F-1+" BY FITCH IBCA, INC. IN THE CASE OF ACCOUNTS IN WHICH FUNDS ARE HELD FOR
THIRTY (30) DAYS OR LESS (OR, IN THE CASE OF LETTERS OF CREDIT OR ACCOUNTS IN
WHICH FUNDS ARE HELD FOR MORE THAN THIRTY (30) DAYS, THE LONG TERM UNSECURED
DEBT OBLIGATIONS OF WHICH ARE RATED AT LEAST "AA" BY FITCH IBCA, INC. AND
STANDARD & POOR'S RATINGS GROUP AND "AA2" BY MOODY'S INVESTORS SERVICE, INC.).
(B)
IN NO EVENT SHALL (I) THE COMPANY, THE GUARANTOR OR ANY PERSON
OTHER THAN THE TRUSTEE BE ENTITLED TO DRAW UPON ANY LETTER OF CREDIT DELIVERED
PURSUANT TO THIS SECTION 10.6, OR (II) ANY PERSON (INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED OR OTHER THIRD-PARTY BENEFICIARY) OTHER THAN THE
TRUSTEE, ON BEHALF OF THE HOLDERS OF THE SECURITIES, HAVE ANY TITLE, RIGHT OR
INTEREST IN ANY LETTER OF CREDIT OR ANY PROCEEDS OF A DRAW UPON ANY LETTER OF
CREDIT.
58
(C)