THAT A SUBSTANTIALLY HIGHER PRICE MIGHT HAVE BEEN REALIZED IF THE
SALE WERE DEFERRED UNTIL AFTER REGISTRATION AS AFORESAID OR IF MORE THAN A
SINGLE PURCHASER WERE APPROACHED.
THE PROVISIONS OF THIS SECTION 11 WILL APPLY
NOTWITHSTANDING THE EXISTENCE OF A PUBLIC OR PRIVATE MARKET UPON WHICH THE
QUOTATIONS OR SALES PRICES MAY EXCEED SUBSTANTIALLY THE PRICE AT WHICH THE
COLLATERAL AGENT SELLS.
SECTION 12.
REGISTRATION, ETC.
EACH PLEDGOR AGREES THAT, UPON THE
OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT HEREUNDER, IF, IN
ACCORDANCE WITH, AND TO THE EXTENT CONSISTENT WITH, THE TERMS OF THE
INTERCREDITOR AGREEMENT, FOR ANY REASON THE COLLATERAL AGENT DESIRES TO SELL ANY
OF THE PLEDGED SECURITIES AT A PUBLIC SALE, IT WILL, AT ANY TIME AND FROM
11
TIME TO TIME, UPON THE WRITTEN REQUEST OF THE COLLATERAL AGENT, USE ITS BEST
EFFORTS TO TAKE OR TO CAUSE THE ISSUER OF SUCH PLEDGED SECURITIES TO TAKE SUCH
ACTION AND PREPARE, DISTRIBUTE AND/OR FILE SUCH DOCUMENTS, AS ARE REQUIRED OR
ADVISABLE IN THE REASONABLE OPINION OF COUNSEL FOR THE COLLATERAL AGENT TO
PERMIT THE PUBLIC SALE OF SUCH PLEDGED SECURITIES.
EACH PLEDGOR FURTHER AGREES
TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE COLLATERAL AGENT, EACH OTHER SECURED
PARTY, ANY UNDERWRITER AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AFFILIATES AND
CONTROLLING PERSONS FROM AND AGAINST ALL LOSS, LIABILITY, EXPENSES, COSTS OF
COUNSEL (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES TO THE
COLLATERAL AGENT OF LEGAL COUNSEL), AND CLAIMS (INCLUDING THE COSTS OF
INVESTIGATION) THAT THEY MAY INCUR INSOFAR AS SUCH LOSS, LIABILITY, EXPENSE OR
CLAIM ARISES OUT OF OR IS BASED UPON ANY UNTRUE STATEMENT OF A MATERIAL FACT
CONTAINED IN ANY PROSPECTUS (OR ANY AMENDMENT OR SUPPLEMENT THERETO) OR IN ANY
NOTIFICATION OR OFFERING CIRCULAR, OR ARISES OUT OF OR IS BASED UPON ANY
OMISSION TO STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO
MAKE THE STATEMENTS IN ANY THEREOF NOT MISLEADING, EXCEPT INSOFAR AS THE SAME
MAY HAVE BEEN CAUSED BY ANY UNTRUE STATEMENT OR OMISSION BASED UPON INFORMATION
FURNISHED TO SUCH PLEDGOR OR THE ISSUER OF SUCH PLEDGED SECURITIES BY THE
COLLATERAL AGENT OR ANY OTHER SECURED PARTY EXPRESSLY FOR USE THEREIN. EACH
PLEDGOR FURTHER AGREES, UPON SUCH WRITTEN REQUEST REFERRED TO ABOVE, TO USE ITS
BEST EFFORTS TO QUALIFY, FILE OR REGISTER, OR CAUSE THE ISSUER OF SUCH PLEDGED
SECURITIES TO QUALIFY, FILE OR REGISTER, ANY OF THE PLEDGED SECURITIES UNDER THE
BLUE SKY OR OTHER SECURITIES LAWS OF SUCH STATES AS MAY BE REQUESTED BY THE
COLLATERAL AGENT AND KEEP EFFECTIVE, OR CAUSE TO BE KEPT EFFECTIVE, ALL SUCH
QUALIFICATIONS, FILINGS OR REGISTRATIONS.
THE PLEDGORS WILL BEAR ALL COSTS AND
EXPENSES OF CARRYING OUT THEIR OBLIGATIONS UNDER THIS SECTION 12.
EACH PLEDGOR
ACKNOWLEDGES THAT THERE IS NO ADEQUATE REMEDY AT LAW FOR FAILURE BY IT TO COMPLY
WITH THE PROVISIONS OF THIS SECTION 12 AND THAT SUCH FAILURE WOULD NOT BE
ADEQUATELY COMPENSABLE IN DAMAGES, AND THEREFORE AGREES THAT ITS AGREEMENTS
CONTAINED IN THIS SECTION 12 MAY