Public Sales. (a) In the event the Secured Party is permitted to sell any of the Pledged Collateral pursuant to Section 11.1, upon the written request of the Secured Party, the Pledgor: (i) unless in the opinion of counsel for the Secured Party such registration is not required, will use its best efforts to cause to become effective under the Securities Act of 1933, as amended and as from time to time in effect and the rules and regulations thereunder (the “Securities Act”), a registration statement or statements relating to any or all of the Pledged Collateral and will use its best efforts to keep effective each such registration and cause to be filed such post-effective amendment or amendments to each such registration statement (including any amended or supplemented prospectuses required by the Securities Act) as may be appropriate to permit the sale or other disposition of any of the Pledged Collateral pursuant to this Agreement at such time and on such terms as the Secured Party may determine; (ii) will use best efforts to cause to be furnished to the Secured Party such number of copies as the Secured Party may reasonably request of each preliminary prospectus and prospectus, will promptly notify the Secured Party of the happening of any event as a result of which any then effective prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of then existing circumstances and will use best efforts to cause the Secured Party to be furnished with such number of copies as the Secured Party may reasonably request of such supplement to or amendment of such prospectus as is necessary to eliminate such untrue statement or supply such omission; (iii) will use best efforts to cause each Issuer to and will itself to the extent permitted by law, indemnify, defend and hold harmless the Secured Party from and against all losses, liabilities, expenses or claims (including legal expenses and the reasonable costs of investigation) which Secured Party may incur, under the Securities Act or otherwise, insofar as such losses, liabilities, expenses or claims arise out of or are based upon any alleged untrue statement of a material fact contained in such registration statement (or any amendment thereto) or in any preliminary prospectus or prospectus (or any amendment or supplement thereto), or arise out of or are based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except to the extent that any such losses, liabilities, expenses or claims arise solely out of or are based upon any such alleged untrue statement made or such alleged omission to state a material fact with respect to information furnished by a Secured Party and included in any such document on the written authority of the Secured Party; (iv) will use its best efforts to have qualified, filed or registered any of the Pledged Collateral under the “Blue Sky” or other securities laws of such jurisdictions as may be reasonably requested by the Secured Party and will use best efforts to cause to be kept effective all such qualifications, filings and registrations; (v) will, if the offering pursuant to any registration statement is, at the written request of the Secured Party, to be made through underwriters, itself, if requested by such underwriters, enter, and use best efforts to cause the Issuer to enter, into an underwriting agreement in customary form with such underwriters and to indemnify such underwriters, its officers and directors and each person who controls such underwriters within the meaning of the Securities Act to the same extent as hereinbefore provided with respect to the indemnification of the Secured Party; (vi) will provide (if available) at its expense, provided such insurance is available at commercially reasonable rates, a policy or policies of such insurer or insurers satisfactory to the Secured Party, in substance indemnifying and holding harmless to the extent of 100% of the contemplated aggregate public offering price of the Pledged Collateral, the Secured Party, each underwriter who may be participating in such sale, and each other person referred to as being insured under such policy or policies, from and against any and all losses, liabilities, claims, damages and expenses, joint or several, to which any of the assured may become subject under the Securities Act, or any other statute or common law, arising out of or based on the ground that any preliminary prospectus, prospectus or registration statement relating to such sale includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (vii) will use best efforts to take or cause to be taken all requisite action in connection with any declaration of, registration with, or approval of any other governmental official or authority (in addition to that provided for above) before such Pledged Collateral may be transferred or sold by the Secured Party; (viii) will use best efforts to cause the Secured Party to be kept advised in writing as to the progress of each registration, qualification or compliance pursuant to clauses (i), (iv) or (vii) above and as to the completion thereof; (ix) will do any and all other acts and things which may be reasonably necessary or advisable to enable the Secured Party to consummate any proposed sale or other disposition of any of the Pledged Collateral pursuant to this Agreement; and (x) will bear all costs and expenses of carrying out its obligations hereunder. The Pledgor agrees that promptly upon the written request of the Secured Party it will use its best efforts to cause to be withdrawn from registration or, if the registration statement has been declared effective, to be deregistered any of the Pledged Collateral the Secured Party requests be withdrawn or deregistered. (b) The Pledgor agrees that the Secured Party shall have the right, at any time when in the Secured Party’s sole and exclusive judgment exercised in good faith, the Secured Party is, or might be deemed to be, a controlling person of the Issuer (i) to participate in the preparation of such registration statement and to require the insertion therein of material which in its judgment, as aforesaid, should be included; (ii) the Pledgor’s expense, to retain counsel and/or independent public accountants to assist it in such participation; and (iii) at the Pledgor’s expense, to receive an opinion or opinions of counsel and a letter or letters from independent public accountants, addressed to the Secured Party, to the same effect as any such opinion and letter delivered to the Pledgor, the Issuer or any underwriter in connection with such registration and sale. If any such registration statement refers to the Secured Party by name or otherwise, then, the Secured Party shall have the right to require (A) the insertion therein of language, in form and substance satisfactory to it, to the effect that its relationship to the Pledgor or the Issuer is not to be construed as a recommendation by Secured Party of the investment quality of the Issuer’s securities covered thereby and does not imply that it will assist in meeting any future financial requirements of the Pledgor or the Issuer, or (B) in the event that such reference to it by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to it. (c) The Pledgor agrees that it will give the Secured Party prompt written notification of (i) the filing of any registration statement pursuant to Section 12 of the 1934 Act (a “1934 Act Registration Statement”) relating to any class of equity securities of any Issuer, and (ii) the effectiveness of such Registration Statement and the number of shares of such class of equity securities outstanding at the time such Registration Statement becomes effective, in order that the Secured Party may be in a position to file any required statements under the 1934 Act or the Securities Act. The Pledgor further agrees that it will (A) at its expense, upon Secured Party’s written request, use best efforts to cause the Issuer to file a 1934 Act Registration Statement relating to any class of equity securities of the Issuer then held by Secured Party; (B) use best efforts to cause the Issuer to file all reports required by Section 13 of the 1934 Act within the time periods specified therein or any extension thereof granted by the Securities and Exchange Commission pursuant to Rule 12b-25 or any other comparable rule under the 1934 Act; and (C) use best efforts to cause the Issuer to furnish to Secured Party any information which the Secured Party may reasonably required for the purpose of completing Form 144, or any other comparable form, in connection with any proposed sale by Secured Party pursuant to Rule 144 under the Securities Act, as then in effect, or any other comparable rule, of any of the Pledged Collateral. (d) In the event that any action required to be taken by Pledgor under Subsection 11.4(a)(i), (ii), (iv), (vi), (vii) or (viii), or under Subsection 11.4(b)(i), (i) or (iii) or under Subsection 11.4(c) involves the incurring of costs and expenses by any Issuer, it is understood and agreed that Pledgor shall not be required to take such action unless it shall have available to it funds in amounts sufficient to reimburse the Issuer for such costs and expenses to be incurred by the Issuer. Funds shall be deemed available to the Pledgor for the foregoing purposes if the Secured Party are willing to advance funds to the Pledgor for such purposes on substantially the same terms and conditions as the loans evidenced by the Note; provided, however, the provisions of this paragraph shall not in any way constitute a commitment on the part of the Secured Party to provide such funds.
Appears in 1 contract
Sources: Pledge Agreement (Tracinda Corp)
Public Sales. (a) In the event the Secured Party Administrative Agent is permitted to sell any of the Pledged Collateral pursuant to Section 11.1, upon the written request of the Secured PartyAdministrative Agent, the PledgorCompany:
(i) unless in the opinion of counsel for the Secured Party Parties such registration is not required, will use its best efforts to cause to become effective under the Securities Act of 1933, as amended and as from time to time in effect and the rules and regulations thereunder (the “"Securities Act”"), a registration statement or statements relating to any or all of the Pledged Collateral and will use its best efforts to keep effective each such registration and cause to be filed such post-effective amendment or amendments to each such registration statement (including any amended or supplemented prospectuses required by the Securities Act) as may be appropriate to permit the sale or other disposition of any of the Pledged Collateral pursuant to this Agreement at such time and on such terms as the Secured Party Parties may determine;
(ii) will use best efforts to cause to be furnished to the Secured Party Administrative Agent such number of copies as the Secured Party Administrative Agent may reasonably request of each preliminary prospectus and prospectus, will promptly notify the Secured Party Administrative Agent of the happening of any event as a result of which any then effective prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of then existing circumstances and will use best efforts to cause the Secured Party Administrative Agent to be furnished with such number of copies as the Secured Party Administrative Agent may reasonably request of such supplement to or amendment of such prospectus as is necessary to eliminate such untrue statement or supply such omission;
(iii) will use best efforts to cause each Issuer to and will itself to the extent permitted by law, indemnify, defend and hold harmless the Secured Party Parties, and each of them, from and against all losses, liabilities, expenses or claims (including legal expenses and the reasonable costs of investigation) which any Secured Party may incur, under the Securities Act or otherwise, insofar as such losses, liabilities, expenses or claims arise out of or are based upon any alleged untrue statement of a material fact contained in such registration statement (or any amendment thereto) or in any preliminary prospectus or prospectus (or any amendment or supplement thereto), or arise out of or are based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except to the extent that any such losses, liabilities, expenses or claims arise solely out of or are based upon any such alleged untrue statement made or such alleged omission to state a material fact with respect to information furnished by a Secured Party and included in any such document on the written authority of the Secured PartyAdministrative Agent;
(iv) will use its best efforts to have qualified, filed or registered any of the Pledged Collateral under the “"Blue Sky” " or other securities laws of such jurisdictions as may be reasonably requested by the Secured Party Administrative Agent and will use best efforts to cause to be kept effective all such qualifications, filings and registrations;
(v) will, if the offering pursuant to any registration statement is, at the written request of the Secured PartyAdministrative Agent, to be made through underwriters, itself, if requested by such underwriters, enter, and use best efforts to cause the Issuer to enter, into an underwriting agreement in customary form with such underwriters and to indemnify such underwriters, its their officers and directors and each person who controls such underwriters within the meaning of the Securities Act to the same extent as hereinbefore provided with respect to the indemnification of the Secured PartyParties;
(vi) will provide (if available) at its expense, provided such insurance is available at commercially reasonable rates, a policy or policies of such insurer or insurers satisfactory to the Secured PartyParties, in substance indemnifying and holding harmless to the extent of 100% of the contemplated aggregate public offering price of the Pledged Collateral, the each Secured Party, each underwriter who may be participating in such sale, and each other person referred to as being insured under such policy or policies, from and against any and all losses, liabilities, claims, damages and expenses, joint or several, to which any of the assured may become subject under the Securities Act, or any other statute or common law, arising out of or based on the ground that any preliminary prospectus, prospectus or registration statement relating to such sale includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(vii) will use best efforts to take or cause to be taken all requisite action in connection with any declaration of, registration with, or approval of any other governmental official or authority (in addition to that provided for above) before such Pledged Collateral may be transferred or sold by the Secured PartyAdministrative Agent;
(viii) will use best efforts to cause the Secured Party Administrative Agent to be kept advised in writing as to the progress of each registration, qualification or compliance pursuant to clauses (i), (iv) or (vii) above and as to the completion thereof;
(ix) will do any and all other acts and things which may be reasonably necessary or advisable to enable the Secured Party Administrative Agent to consummate any proposed sale or other disposition of any of the Pledged Collateral pursuant to this Agreement; and
(x) will bear all costs and expenses of carrying out its obligations hereunder. The Pledgor Company agrees that promptly upon the written request of the Secured Party Administrative Agent it will use its best efforts to cause to be withdrawn from registration or, if the registration statement has been declared effective, to be deregistered any of the Pledged Collateral the Secured Party Administrative Agent requests be withdrawn or deregistered.
(b) The Pledgor Company agrees that the Secured Party Parties shall have the right, at any time when in the Secured Party’s Administrative Agent's sole and exclusive judgment exercised in good faith, the Secured Party Administrative Agent is, or might be deemed to be, a controlling person of the Issuer (i) to participate in the preparation of such registration statement and to require the insertion therein of material which in its judgment, as aforesaid, should be included; (ii) at the Pledgor’s Company's expense, to retain counsel and/or independent public accountants to assist it them in such participation; and (iii) at the Pledgor’s Company's expense, to receive an opinion or opinions of counsel and a letter or letters from independent public accountants, addressed to the Secured PartyParties, to the same effect as any such opinion and letter delivered to the PledgorCompany, the Issuer or any underwriter in connection with such registration and sale. If any such registration statement refers to the Secured Party Parties by name or otherwise, then, the Secured Party Parties shall have the right to require (A) the insertion therein of language, in form and substance satisfactory to it, to the effect that its relationship to the Pledgor Company or the Issuer is not to be construed as a recommendation by any Secured Party of the investment quality of the Issuer’s 's securities covered thereby and does not imply that it they will assist in meeting any future financial requirements of the Pledgor Company or the Issuer, or (B) in the event that such reference to it by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to it.
(c) The Pledgor Company agrees that it will give the Secured Party Administrative Agent prompt written notification of (i) the filing of any registration statement pursuant to Section 12 of the 1934 Act (a “"1934 Act Registration Statement”") relating to any class of equity securities of any Issuer, and (ii) the effectiveness of such Registration Statement and the number of shares of such class of equity securities outstanding at the time such Registration Statement becomes effective, in order that the Secured Party Administrative Agent may be in a position to file any required statements under the 1934 Act or the Securities Act. The Pledgor Company further agrees that it will (A) at its expense, upon Secured Party’s Administrative Agent's written request, use best efforts to cause the Issuer to file a 1934 Act Registration Statement relating to any class of equity securities of the Issuer then held by Secured PartyAdministrative Agent; (B) use best efforts to cause the Issuer to file all reports required by Section 13 of the 1934 Act within the time periods specified therein or any extension thereof granted by the Securities and Exchange Commission pursuant to Rule 12b-25 or any other comparable rule under the 1934 Act; and (C) use best efforts to cause the Issuer to furnish to Secured Party Administrative Agent any information which the Secured Party Parties may reasonably required require for the purpose of completing Form 144, or any other comparable form, in connection with any proposed sale by Secured Party Administrative Agent pursuant to Rule 144 under the Securities Act, as then in effect, or any other comparable rule, of any of the Pledged Collateral.
(d) In the event that any action required to be taken by Pledgor Company under Subsection 11.4(a)(i), (ii), (iv), (vi), (vii) or (viii), or under Subsection 11.4(b)(i), (i) or (iii) or under Subsection 11.4(c) involves the incurring of costs and expenses by any Issuer, it is understood and agreed that Pledgor Company shall not be required to take such action unless it shall have available to it funds in amounts sufficient to reimburse the Issuer for such costs and expenses to be incurred by the Issuer. Funds shall be deemed available to the Pledgor Company for the foregoing purposes if the Secured Party Parties are willing to advance funds to the Pledgor Company for such purposes on substantially the same terms and conditions as the loans evidenced by the Note; provided, however, the provisions of this paragraph shall not in any way constitute a commitment on the part of the Secured Party Parties to provide such funds.
Appears in 1 contract
Sources: Credit Agreement (Kerkorian Kirk)
Public Sales. (a) In the event the Secured Party Administrative Agent is permitted to sell any of the best efforts to cause to be kept effective all Pledged Collateral pursuant to Section 11.1, upon the written request of the Secured PartyAdministrative Agent, the PledgorCompany:
(i) unless in the opinion of counsel for the Secured Party Parties such registration is not required, will use its best efforts to cause to become effective under the Securities Act of 1933, as amended and as from time to time in effect and the rules and regulations thereunder (the “Securities Act”), a registration statement or statements relating to any or all of the Pledged Collateral and will use its best efforts to keep effective each such registration and cause to be filed such post-effective amendment or amendments to each such registration statement (including any amended or supplemented prospectuses required by the Securities Act) as may be appropriate to permit the sale or other disposition of any of the Pledged Collateral pursuant to this Agreement at such time and on such terms as the Secured Party Parties may determine;
(ii) will use best efforts to cause to be furnished to the Secured Party Administrative Agent such number of copies as the Secured Party Administrative Agent may reasonably request of each preliminary prospectus and prospectus, will promptly notify the Secured Party Administrative Agent of the happening of any event as a result of which any then effective prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of then existing circumstances and will use best efforts to cause the Secured Party Administrative Agent to be furnished with such number of copies as the Secured Party Administrative Agent may reasonably request of such supplement to or amendment of such prospectus as is necessary to eliminate such untrue statement or supply such omission;
(iii) will use best efforts to cause each Issuer to and will itself to the extent permitted by law, indemnify, defend and hold harmless the Secured Party Parties, and each of them, from and against all losses, liabilities, expenses or claims (including legal expenses and the reasonable costs of investigation) which any Secured Party may incur, under the Securities Act or otherwise, insofar as such losses, liabilities, expenses or claims arise out of or are based upon any alleged untrue statement of a material fact contained in such registration statement (or any amendment thereto) or in any preliminary prospectus or prospectus (or any amendment or supplement thereto), or arise out of or are based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except to the extent that any such losses, liabilities, expenses or claims arise solely out of or are based upon any such alleged untrue statement made or such alleged omission to state a material fact with respect to information furnished by a Secured Party and included in any such document on the written authority of the Secured PartyAdministrative Agent;
(iv) will use its best efforts to have qualified, filed or registered any of the Pledged Collateral under the “Blue Sky” or other securities laws of such jurisdictions as may be reasonably requested by the Secured Party Administrative Agent and will use best efforts to cause to be kept effective all such qualifications, filings and registrations;
(v) will, if the offering pursuant to any registration statement is, at the written request of the Secured PartyAdministrative Agent, to be made through underwriters, itself, if requested by such underwriters, enter, and use best efforts to cause the Issuer to enter, into an underwriting agreement in customary form with such underwriters and to indemnify such underwriters, its their officers and directors and each person who controls such underwriters within the meaning of the Securities Act to the same extent as hereinbefore provided with respect to the indemnification of the Secured PartyParties;
(vi) will provide (if available) at its expense, provided such insurance is available at commercially reasonable rates, a policy or policies of such insurer or insurers satisfactory to the Secured PartyParties, in substance indemnifying and holding harmless to the extent of 100% of the contemplated aggregate public offering price of the Pledged Collateral, the each Secured Party, each underwriter who may be participating in such sale, and each other person referred to as being insured under such policy or policies, from and against any and all losses, liabilities, claims, damages and expenses, joint or several, to which any of the assured may become subject under the Securities Act, or any other statute or common law, arising out of or based on the ground that any preliminary prospectus, prospectus or registration statement relating to such sale includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(vii) will use best efforts to take or cause to be taken all requisite action in connection with any declaration of, registration with, or approval of any other governmental official or authority (in addition to that provided for above) before such Pledged Collateral may be transferred or sold by the Secured PartyAdministrative Agent;
(viii) will use best efforts to cause the Secured Party Administrative Agent to be kept advised in writing as to the progress of each registration, qualification or compliance pursuant to clauses (i), (iv) or (vii) above and as to the completion thereof;
(ix) will do any and all other acts and things which may be reasonably necessary or advisable to enable the Secured Party Administrative Agent to consummate any proposed sale or other disposition of any of the Pledged Collateral pursuant to this Agreement; and
(x) will bear all costs and expenses of carrying out its obligations hereunder. The Pledgor Company agrees that promptly upon the written request of the Secured Party Administrative Agent it will use its best efforts to cause to be withdrawn from registration or, if if, the registration statement has been declared effective, to be deregistered any of the Pledged Collateral the Secured Party Administrative Agent requests be withdrawn or deregistered.
(b) The Pledgor Company agrees that the Secured Party Parties shall have the right, at any time when in the Secured PartyAdministrative Agent’s sole and exclusive judgment exercised in good faith, the Secured Party Administrative Agent is, or might be deemed to be, a controlling person of the Issuer (i) to participate in the preparation of such registration statement and to require the insertion therein of material which in its judgment, as aforesaid, should be included; (ii) at the PledgorCompany’s expense, to retain counsel and/or independent public accountants to assist it them in such participation; and (iii) at the PledgorCompany’s expense, to receive an opinion or opinions of counsel and a letter or letters from independent public accountants, addressed to the Secured PartyParties, to the same effect as any such opinion and letter delivered to the PledgorCompany, the Issuer or any underwriter in connection with such registration and sale. If any such registration statement refers to the Secured Party Parties by name or otherwise, then, the Secured Party Parties shall have the right to require (A) the insertion therein of language, in form and substance satisfactory to it, to the effect that its relationship to the Pledgor Company or the Issuer is not to be construed as a recommendation by any Secured Party of the investment quality of the Issuer’s securities covered thereby and does not imply that it they will assist in meeting any future financial requirements of the Pledgor Company or the Issuer, or (B) in the event that such reference to it by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to it.
(c) The Pledgor Company agrees that it will give the Secured Party Administrative Agent prompt written notification of (i) the filing of any registration statement pursuant to Section 12 of the 1934 Act (a “1934 Act Registration Statement”) relating to any class of equity securities of any Issuer, and (ii) the effectiveness of such Registration Statement and the number of shares of such class of equity securities outstanding at the time such Registration Statement becomes effective, in order that the Secured Party Administrative Agent may be in a position to file any required statements under the 1934 Act or the Securities Act. The Pledgor Company further agrees that it will (A) at its expense, upon Secured PartyAdministrative Agent’s written request, use best efforts to cause the Issuer to file a 1934 Act Registration Statement relating to any class of equity securities of the Issuer then held by Secured PartyAdministrative Agent; (B) use best efforts to cause the Issuer to file all reports required by Section 13 of the 1934 Act within the time periods specified therein or any extension thereof granted by the Securities and Exchange Commission pursuant to Rule 12b-25 or any other comparable rule under the 1934 Act; and (C) use best efforts to cause the Issuer to furnish to Secured Party Administrative Agent any information which the Secured Party Parties may reasonably required require for the purpose of completing Form 144, or any other comparable form, in connection with any proposed sale by Secured Party Administrative Agent pursuant to Rule 144 under the Securities Act, as then in effect, or any other comparable rule, of any of the Pledged Collateral.
(d) In the event that any action required to be taken by Pledgor Company under Subsection 11.4(a)(i), (ii), (iv), (vi), (vii) or (viii), or under Subsection 11.4(b)(i), (i) or (iii) or under Subsection 11.4(c) involves the incurring of costs and expenses by any Issuer, it is understood and agreed that Pledgor Company shall not be required to take such action unless it shall have available to it funds in amounts sufficient to reimburse the Issuer for such costs and expenses to be incurred by the Issuer. Funds shall be deemed available to the Pledgor Company for the foregoing purposes if the Secured Party Parties are willing to advance funds to the Pledgor Company for such purposes on substantially the same terms and conditions as the loans evidenced by the Note; provided, however, the provisions of this paragraph shall not in any way constitute a commitment on the part of the Secured Party Parties to provide such funds.
Appears in 1 contract
Sources: Pledge Agreement (Tracinda Corp)
Public Sales. (a) In the event the Secured Party is permitted to sell any of the Pledged Collateral pursuant to Section 11.1, upon the written request of the Secured Party, the PledgorCompany:
(i) unless in the opinion of counsel for the Secured Party such registration is not required, will use its best efforts to cause to become effective under the Securities Act of 1933, as amended and as from time to time in effect and the rules and regulations thereunder (the “Securities Act”), a registration statement or statements relating to any or all of the Pledged Collateral and will use its best efforts to keep effective each such registration and cause to be filed such post-effective amendment or amendments to each such registration statement (including any amended or supplemented prospectuses required by the Securities Act) as may be appropriate to permit the sale or other disposition of any of the Pledged Collateral pursuant to this Agreement at such time and on such terms as the Secured Party may determine;
(ii) will use best efforts to cause to be furnished to the Secured Party such number of copies as the Secured Party may reasonably request of each preliminary prospectus and prospectus, will promptly notify the Secured Party of the happening of any event as a result of which any then effective prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of then existing circumstances and will use best efforts to cause the Secured Party to be furnished with such number of copies as the Secured Party may reasonably request of such supplement to or amendment of such prospectus as is necessary to eliminate such untrue statement or supply such omission;
(iii) will use best efforts to cause each Issuer to and will itself to the extent permitted by law, indemnify, defend and hold harmless the Secured Party from and against all losses, liabilities, expenses or claims (including legal expenses and the reasonable costs of investigation) which Secured Party may incur, under the Securities Act or otherwise, insofar as such losses, liabilities, expenses or claims arise out of or are based upon any alleged untrue statement of a material fact contained in such registration statement (or any amendment thereto) or in any preliminary prospectus or prospectus (or any amendment or supplement thereto), or arise out of or are based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except to the extent that any such losses, liabilities, expenses or claims arise solely out of or are based upon any such alleged untrue statement made or such alleged omission to state a material fact with respect to information furnished by a Secured Party and included in any such document on the written authority of the Secured Party;
(iv) will use its best efforts to have qualified, filed or registered any of the Pledged Collateral under the “Blue Sky” or other securities laws of such jurisdictions as may be reasonably requested by the Secured Party and will use best efforts to cause to be kept effective all such qualifications, filings and registrations;
(v) will, if the offering pursuant to any registration statement is, at the written request of the Secured Party, to be made through underwriters, itself, if requested by such underwriters, enter, and use best efforts to cause the Issuer to enter, into an underwriting agreement in customary form with such underwriters and to indemnify such underwriters, its officers and directors and each person who controls such underwriters within the meaning of the Securities Act to the same extent as hereinbefore provided with respect to the indemnification of the Secured Party;
(vi) will provide (if available) at its expense, provided such insurance is available at commercially reasonable rates, a policy or policies of such insurer or insurers satisfactory to the Secured Party, in substance indemnifying and holding harmless to the extent of 100% of the contemplated aggregate public offering price of the Pledged Collateral, the Secured Party, each underwriter who may be participating in such sale, and each other person referred to as being insured under such policy or policies, from and against any and all losses, liabilities, claims, damages and expenses, joint or several, to which any of the assured may become subject under the Securities Act, or any other statute or common law, arising out of or based on the ground that any preliminary prospectus, prospectus or registration statement relating to such sale includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(vii) will use best efforts to take or cause to be taken all requisite action in connection with any declaration of, registration with, or approval of any other governmental official or authority (in addition to that provided for above) before such Pledged Collateral may be transferred or sold by the Secured Party;
(viii) will use best efforts to cause the Secured Party to be kept advised in writing as to the progress of each registration, qualification or compliance pursuant to clauses (i), (iv) or (vii) above and as to the completion thereof;
(ix) will do any and all other acts and things which may be reasonably necessary or advisable to enable the Secured Party to consummate any proposed sale or other disposition of any of the Pledged Collateral pursuant to this Agreement; and
(x) will bear all costs and expenses of carrying out its obligations hereunder. The Pledgor Company agrees that promptly upon the written request of the Secured Party it will use its best efforts to cause to be withdrawn from registration or, if the registration statement has been declared effective, to be deregistered any of the Pledged Collateral the Secured Party requests be withdrawn or deregistered.
(b) The Pledgor Company agrees that the Secured Party shall have the right, at any time when in the Secured Party’s sole and exclusive judgment exercised in good faith, the Secured Party is, or might be deemed to be, a controlling person of the Issuer (i) to participate in the preparation of such registration statement and to require the insertion therein of material which in its judgment, as aforesaid, should be included; (ii) the PledgorCompany’s expense, to retain counsel and/or independent public accountants to assist it in such participation; and (iii) at the PledgorCompany’s expense, to receive an opinion or opinions of counsel and a letter or letters from independent public accountants, addressed to the Secured Party, to the same effect as any such opinion and letter delivered to the PledgorCompany, the Issuer or any underwriter in connection with such registration and sale. If any such registration statement refers to the Secured Party by name or otherwise, then, the Secured Party shall have the right to require (A) the insertion therein of language, in form and substance satisfactory to it, to the effect that its relationship to the Pledgor Company or the Issuer is not to be construed as a recommendation by Secured Party of the investment quality of the Issuer’s securities covered thereby and does not imply that it will assist in meeting any future financial requirements of the Pledgor Company or the Issuer, or (B) in the event that such reference to it by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to it.
(c) The Pledgor Company agrees that it will give the Secured Party prompt written notification of (i) the filing of any registration statement pursuant to Section 12 of the 1934 Act (a “1934 Act Registration Statement”) relating to any class of equity securities of any Issuer, and (ii) the effectiveness of such Registration Statement and the number of shares of such class of equity securities outstanding at the time such Registration Statement becomes effective, in order that the Secured Party may be in a position to file any required statements under the 1934 Act or the Securities Act. The Pledgor Company further agrees that it will (A) at its expense, upon Secured Party’s written request, use best efforts to cause the Issuer to file a 1934 Act Registration Statement relating to any class of equity securities of the Issuer then held by Secured Party; (B) use best efforts to cause the Issuer to file all reports required by Section 13 of the 1934 Act within the time periods specified therein or any extension thereof granted by the Securities and Exchange Commission pursuant to Rule 12b-25 or any other comparable rule under the 1934 Act; and (C) use best efforts to cause the Issuer to furnish to Secured Party any information which the Secured Party may reasonably required for the purpose of completing Form 144, or any other comparable form, in connection with any proposed sale by Secured Party pursuant to Rule 144 under the Securities Act, as then in effect, or any other comparable rule, of any of the Pledged Collateral.
(d) In the event that any action required to be taken by Pledgor Company under Subsection 11.4(a)(i), (ii), (iv), (vi), (vii) or (viii), or under Subsection 11.4(b)(i), (i) or (iii) or under Subsection 11.4(c) involves the incurring of costs and expenses by any Issuer, it is understood and agreed that Pledgor Company shall not be required to take such action unless it shall have available to it funds in amounts sufficient to reimburse the Issuer for such costs and expenses to be incurred by the Issuer. Funds shall be deemed available to the Pledgor Company for the foregoing purposes if the Secured Party are willing to advance funds to the Pledgor Company for such purposes on substantially the same terms and conditions as the loans evidenced by the Note; provided, however, the provisions of this paragraph shall not in any way constitute a commitment on the part of the Secured Party to provide such funds.
Appears in 1 contract
Sources: Pledge Agreement (Tracinda Corp)
Public Sales. (a) In the event the Secured Party Administrative Agent is permitted to sell any of the best efforts to cause to be kept effective all Pledged Collateral pursuant to Section 11.1, upon the written request of the Secured PartyAdministrative Agent, the PledgorCompany:
(i) unless in the opinion of counsel for the Secured Party Parties such registration is not required, will use its best efforts to cause to become effective under the Securities Act of 1933, as amended and as from time to time in effect and the rules and regulations thereunder (the “Securities Act”), a registration statement or statements relating to any or all of the Pledged Collateral and will use its best efforts to keep effective each such registration and cause to be filed such post-effective amendment or amendments to each such registration statement (including any amended or supplemented prospectuses required by the Securities Act) as may be appropriate to permit the sale or other disposition of any of the Pledged Collateral pursuant to this Agreement at such time and on such terms as the Secured Party Parties may determine;
(ii) will use best efforts to cause to be furnished to the Secured Party Administrative Agent such number of copies as the Secured Party Administrative Agent may reasonably request of each preliminary prospectus and prospectus, will promptly notify the Secured Party Administrative Agent of the happening of any event as a result of which any then effective prospectus includes an untrue statement of a material fact or PLEDGE AGREEMENT omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of then existing circumstances and will use best efforts to cause the Secured Party Administrative Agent to be furnished with such number of copies as the Secured Party Administrative Agent may reasonably request of such supplement to or amendment of such prospectus as is necessary to eliminate such untrue statement or supply such omission;
(iii) will use best efforts to cause each Issuer to and will itself to the extent permitted by law, indemnify, defend and hold harmless the Secured Party Parties, and each of them, from and against all losses, liabilities, expenses or claims (including legal expenses and the reasonable costs of investigation) which any Secured Party may incur, under the Securities Act or otherwise, insofar as such losses, liabilities, expenses or claims arise out of or are based upon any alleged untrue statement of a material fact contained in such registration statement (or any amendment thereto) or in any preliminary prospectus or prospectus (or any amendment or supplement thereto), or arise out of or are based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except to the extent that any such losses, liabilities, expenses or claims arise solely out of or are based upon any such alleged untrue statement made or such alleged omission to state a material fact with respect to information furnished by a Secured Party and included in any such document on the written authority of the Secured PartyAdministrative Agent;
(iv) will use its best efforts to have qualified, filed or registered any of the Pledged Collateral under the “Blue Sky” or other securities laws of such jurisdictions as may be reasonably requested by the Secured Party Administrative Agent and will use best efforts to cause to be kept effective all such qualifications, filings and registrations;
(v) will, if the offering pursuant to any registration statement is, at the written request of the Secured PartyAdministrative Agent, to be made through underwriters, itself, if requested by such underwriters, enter, and use best efforts to cause the Issuer to enter, into an underwriting agreement in customary form with such underwriters and to indemnify such underwriters, its their officers and directors and each person who controls such underwriters within the meaning of the Securities Act to the same extent as hereinbefore provided with respect to the indemnification of the Secured PartyParties;
(vi) will provide (if available) at its expense, provided such insurance is available at commercially reasonable rates, a policy or policies of such insurer or insurers satisfactory to the Secured PartyParties, in substance indemnifying and holding harmless to the extent of 100% of the contemplated aggregate public offering price of the Pledged Collateral, the each Secured Party, each underwriter who may be participating in such sale, and each other person referred to as being insured under such policy or policies, from and against any and all losses, liabilities, claims, damages and expenses, joint or several, to which any of the assured may become subject under the Securities Act, or any other PLEDGE AGREEMENT statute or common law, arising out of or based on the ground that any preliminary prospectus, prospectus or registration statement relating to such sale includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(vii) will use best efforts to take or cause to be taken all requisite action in connection with any declaration of, registration with, or approval of any other governmental official or authority (in addition to that provided for above) before such Pledged Collateral may be transferred or sold by the Secured PartyAdministrative Agent;
(viii) will use best efforts to cause the Secured Party Administrative Agent to be kept advised in writing as to the progress of each registration, qualification or compliance pursuant to clauses (i), (iv) or (vii) above and as to the completion thereof;
(ix) will do any and all other acts and things which may be reasonably necessary or advisable to enable the Secured Party Administrative Agent to consummate any proposed sale or other disposition of any of the Pledged Collateral pursuant to this Agreement; and
(x) will bear all costs and expenses of carrying out its obligations hereunder. The Pledgor Company agrees that promptly upon the written request of the Secured Party Administrative Agent it will use its best efforts to cause to be withdrawn from registration or, if if, the registration statement has been declared effective, to be deregistered any of the Pledged Collateral the Secured Party Administrative Agent requests be withdrawn or deregistered.
(b) The Pledgor Company agrees that the Secured Party Parties shall have the right, at any time when in the Secured PartyAdministrative Agent’s sole and exclusive judgment exercised in good faith, the Secured Party Administrative Agent is, or might be deemed to be, a controlling person of the Issuer (i) to participate in the preparation of such registration statement and to require the insertion therein of material which in its judgment, as aforesaid, should be included; (ii) at the PledgorCompany’s expense, to retain counsel and/or independent public accountants to assist it them in such participation; and (iii) at the PledgorCompany’s expense, to receive an opinion or opinions of counsel and a letter or letters from independent public accountants, addressed to the Secured PartyParties, to the same effect as any such opinion and letter delivered to the PledgorCompany, the Issuer or any underwriter in connection with such registration and sale. If any such registration statement refers to the Secured Party Parties by name or otherwise, then, the Secured Party Parties shall have the right to require (A) the insertion therein of language, in form and substance satisfactory to it, to the effect that its relationship to the Pledgor Company or the Issuer is not to be construed as a recommendation by any Secured Party of the investment quality of the Issuer’s securities covered thereby and does not imply that it they will assist in meeting any future financial requirements of the Pledgor Company or the Issuer, or (B) in the event that such reference to it by name or otherwise is not required by the PLEDGE AGREEMENT Securities Act or any similar federal statute then in force, the deletion of the reference to it.
(c) The Pledgor Company agrees that it will give the Secured Party Administrative Agent prompt written notification of (i) the filing of any registration statement pursuant to Section 12 of the 1934 Act (a “1934 Act Registration Statement”) relating to any class of equity securities of any Issuer, and (ii) the effectiveness of such Registration Statement and the number of shares of such class of equity securities outstanding at the time such Registration Statement becomes effective, in order that the Secured Party Administrative Agent may be in a position to file any required statements under the 1934 Act or the Securities Act. The Pledgor Company further agrees that it will (A) at its expense, upon Secured PartyAdministrative Agent’s written request, use best efforts to cause the Issuer to file a 1934 Act Registration Statement relating to any class of equity securities of the Issuer then held by Secured PartyAdministrative Agent; (B) use best efforts to cause the Issuer to file all reports required by Section 13 of the 1934 Act within the time periods specified therein or any extension thereof granted by the Securities and Exchange Commission pursuant to Rule 12b-25 or any other comparable rule under the 1934 Act; and (C) use best efforts to cause the Issuer to furnish to Secured Party Administrative Agent any information which the Secured Party Parties may reasonably required require for the purpose of completing Form 144, or any other comparable form, in connection with any proposed sale by Secured Party Administrative Agent pursuant to Rule 144 under the Securities Act, as then in effect, or any other comparable rule, of any of the Pledged Collateral.
(d) In the event that any action required to be taken by Pledgor Company under Subsection 11.4(a)(i), (ii), (iv), (vi), (vii) or (viii), or under Subsection 11.4(b)(i), (i) or (iii) or under Subsection 11.4(c) involves the incurring of costs and expenses by any Issuer, it is understood and agreed that Pledgor Company shall not be required to take such action unless it shall have available to it funds in amounts sufficient to reimburse the Issuer for such costs and expenses to be incurred by the Issuer. Funds shall be deemed available to the Pledgor Company for the foregoing purposes if the Secured Party Parties are willing to advance funds to the Pledgor Company for such purposes on substantially the same terms and conditions as the loans evidenced by the Note; provided, however, the provisions of this paragraph shall not in any way constitute a commitment on the part of the Secured Party Parties to provide such funds.
Appears in 1 contract
Sources: Pledge Agreement
Public Sales. (a) In the event the Secured Party Lender is permitted to sell any of the Pledged Collateral pursuant to Section 11.1, upon the written request of the Secured PartyLender, the PledgorBorrower:
(i) unless in the opinion of counsel for the Secured Party Lender such registration is not required, will use its best efforts to cause to become effective under the Securities Act of 1933, as amended and as from time to time in effect and the rules and regulations thereunder (the “Securities Act”), a registration statement or statements relating to any or all of the Pledged Collateral and will use its best efforts to keep effective each such registration and cause to be filed such post-effective amendment or amendments to each such registration statement (including any amended or supplemented prospectuses required by the Securities Act) as may be appropriate to permit the sale or other disposition of any of the Pledged Collateral pursuant to this Agreement at such time and on such terms as the Secured Party Lender may determine;
(ii) will use best efforts to cause to be furnished to the Secured Party Lender, such number of copies as the Secured Party Lender may reasonably request of each preliminary prospectus and prospectus, will promptly notify the Secured Party Lender of the happening of any event as a result of which any then effective prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of then existing circumstances and will use best efforts to cause the Secured Party Lender to be furnished with such number of copies as the Secured Party Lender may reasonably request of each such supplement to or amendment of such prospectus as is necessary to eliminate such untrue statement or supply such omission;
(iii) will use best efforts to cause each Issuer to and will itself to the extent permitted by law, indemnify, defend and hold harmless the Secured Party Lender from and against all losses, liabilities, expenses or claims (including legal expenses and the reasonable costs of investigation) which Secured Party the Lender may incur, under the Securities Act or otherwise, insofar as such losses, liabilities, expenses or claims arise out of or are based upon any alleged untrue statement of a material fact contained in such registration statement (or any amendment thereto) or in any preliminary prospectus or prospectus (or any amendment or supplement thereto), or arise out of or are based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except to the extent that any such losses, liabilities, expenses or claims arise solely out of or are based upon any such alleged untrue statement made or such alleged omission to state a material fact with respect to information furnished by a Secured Party the Lender and included in any such document on the written authority of the Secured PartyLender;
(iv) will use its best efforts to have qualified, filed or registered any of the Pledged Collateral under the “Blue Sky” or other securities laws of such jurisdictions as may be reasonably requested by the Secured Party Lender and will use best efforts to cause to be kept effective all such qualifications, filings and registrations;
(v) will, if the offering pursuant to any registration statement is, at the written request of the Secured PartyLender, to be made through underwriters, itself, if requested by such underwriters, enter, and use best efforts to cause the Issuer to enter, into an underwriting agreement in customary form with such underwriters and to indemnify such underwriters, its officers and directors and each person who controls such underwriters within the meaning of the Securities Act to the same extent as hereinbefore provided with respect to the indemnification of the Secured PartyLender;
(vi) will provide (if available) at its expense, provided such insurance is available at commercially reasonable rates, a policy or policies of insurance, from such insurer or insurers satisfactory to the Secured PartyLender, in substance indemnifying and holding harmless to the extent of 100% of the contemplated aggregate public offering price of the Pledged Collateral, the Secured PartyLender, each underwriter who may be participating in such sale, and each other person referred to as being insured under such policy or policies, from and against any and all losses, liabilities, claims, damages and expenses, joint or several, to which any of the assured may become subject under the Securities Act, or any other statute or common law, arising out of or based on the ground that any preliminary prospectus, prospectus or registration statement relating to such sale includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(vii) will use best efforts to take or cause to be taken all requisite action in connection with any declaration of, registration with, or approval of any other governmental official or authority (in addition to that provided for above) before such Pledged Collateral may be transferred or sold by the Secured PartyLender;
(viii) will use best efforts to cause the Secured Party Lender to be kept advised in writing as to the progress of each registration, qualification or compliance pursuant to clauses (i), (iv) or (vii) above and as to the completion thereof;
(ix) will do any and all other acts and things which may be reasonably necessary or advisable to enable the Secured Party Lender to consummate any proposed sale or other disposition of any of the Pledged Collateral pursuant to this Agreement; and
(x) will bear all costs and expenses of carrying out its obligations hereunder. The Pledgor Borrower agrees that promptly upon the written request of the Secured Party Lender it will use its best efforts to cause to be withdrawn from registration or, if the registration statement has been declared effective, to be deregistered deregistered, any of the Pledged Collateral the Secured Party Lender requests be withdrawn or deregistered.
(b) The Pledgor Borrower agrees that the Secured Party Lender shall have the right, at any time when in the Secured PartyLender’s sole and exclusive judgment exercised in good faith, the Secured Party Lender is, or might be deemed to be, a controlling person of the Issuer (i) to participate in the preparation of such registration statement and to require the insertion therein of material which in its judgment, as aforesaid, should be included; (ii) at the PledgorBorrower’s expense, to retain counsel and/or independent public accountants to assist it in such participation; and (iii) at the PledgorBorrower’s expense, to receive an opinion or opinions of counsel and a letter or letters from independent public accountants, addressed to the Secured PartyLender, to the same effect as any such opinion and letter delivered to the PledgorBorrower, the Issuer or any underwriter in connection with such registration and sale. If any such registration statement refers to the Secured Party Lender by name or otherwise, then, the Secured Party Lender shall have the right to require (A) the insertion therein of language, in form and substance satisfactory to it, to the effect that its relationship to the Pledgor Borrower or the Issuer is not to be construed as a recommendation by Secured Party the Lender of the investment quality of the Issuer’s securities covered thereby and does not imply that it will assist in meeting any future financial requirements of the Pledgor Borrower or the Issuer, or (B) in the event that such reference to it by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to it.
(c) The Pledgor Borrower agrees that it will give the Secured Party Lender prompt written notification of (i) the filing of any registration statement pursuant to Section 12 of the 1934 Act (a “1934 Act Registration Statement”) relating to any class of equity securities of any Issuer, and (ii) the effectiveness of such Registration Statement and the number of shares of such class of equity securities outstanding at the time such Registration Statement becomes effective, in order that the Secured Party Lender may be in a position to file any required statements under the 1934 Act or the Securities Act. The Pledgor Borrower further agrees that it will (A) at its expense, upon Secured Partythe Lender’s written request, use best efforts to cause the Issuer to file a 1934 Act Registration Statement relating to any class of equity securities of the Issuer then held by Secured Partythe Lender; (B) use best efforts to cause the Issuer to file all reports required by Section 13 of the 1934 Act within the time periods specified therein or any extension thereof granted by the Securities and Exchange Commission pursuant to Rule 12b-25 or any other comparable rule under the 1934 Act; and (C) use best efforts to cause the Issuer to furnish to Secured Party any information which the Secured Party may reasonably required for the purpose of completing Form 144, or any other comparable form, in connection with any proposed sale by Secured Party pursuant to Rule 144 under the Securities Act, as then in effect, or any other comparable rule, of any of the Pledged Collateral.
(d) In the event that any action required to be taken by Pledgor under Subsection 11.4(a)(i), (ii), (iv), (vi), (vii) or (viii), or under Subsection 11.4(b)(i), (i) or (iii) or under Subsection 11.4(c) involves the incurring of costs and expenses by any Issuer, it is understood and agreed that Pledgor shall not be required to take such action unless it shall have available to it funds in amounts sufficient to reimburse the Issuer for such costs and expenses to be incurred by the Issuer. Funds shall be deemed available to the Pledgor for the foregoing purposes if the Secured Party are willing to advance funds to the Pledgor for such purposes on substantially the same terms and conditions as the loans evidenced by the Note; provided, however, the provisions of this paragraph shall not in any way constitute a commitment on the part of the Secured Party to provide such funds.and
Appears in 1 contract
Sources: Pledge Agreement (Tracinda Corp)
Public Sales. (a) In the event the Secured Party Administrative Agent is permitted to sell any of the Pledged Collateral pursuant to Section 11.1, upon the written request of the Secured PartyAdministrative Agent, the Pledgor:
(i) unless in the opinion of counsel for the Secured Party Parties such registration is not required, will use its best efforts to cause to become effective under the Securities Act of 1933, as amended and as from time to time in effect and the rules and regulations thereunder (the “Securities Act”), a registration statement or statements relating to any or all of the Pledged Collateral and will use its best efforts to keep effective each such registration and cause to be filed such post-effective amendment or amendments to each such registration statement (including any amended or supplemented prospectuses required by the Securities Act) as may be appropriate to permit the sale or other disposition of any of the Pledged Collateral pursuant to this Agreement at such time and on such terms as the Secured Party Parties may determine;
(ii) will use best efforts to cause to be furnished to the Secured Party Administrative Agent such number of copies as the Secured Party Administrative Agent may reasonably request of each preliminary prospectus and prospectus, will promptly notify the Secured Party Administrative Agent of the happening of any event as a result of which any then effective prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of then existing circumstances and will use best efforts to cause the Secured Party Administrative Agent to be furnished with such number of copies as the Secured Party Administrative Agent may reasonably request of such supplement to or amendment of such prospectus as is necessary to eliminate such untrue statement or supply such omission;
(iii) will use best efforts to cause each Issuer to and will itself to the extent permitted by law, indemnify, defend and hold harmless the Secured Party Parties, and each of them, from and against all losses, liabilities, expenses or claims (including legal expenses and the reasonable costs of investigation) which any Secured Party may incur, under the Securities Act or otherwise, insofar as such losses, liabilities, expenses or claims arise out of or are based upon any alleged untrue statement of a material fact contained in such registration statement (or any amendment thereto) or in any preliminary prospectus or prospectus (or any amendment or supplement thereto), or arise out of or are based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except to the extent that any such losses, liabilities, expenses or claims arise solely out of or are based upon any such alleged untrue statement made or such alleged omission to state a material fact with respect to information furnished by a Secured Party and included in any such document on the written authority of the Secured PartyAdministrative Agent;
(iv) will use its best efforts to have qualified, filed or registered any of the Pledged Collateral under the “Blue Sky” or other securities laws of such jurisdictions as may be reasonably requested by the Secured Party Administrative Agent and will use best efforts to cause to be kept effective all such qualifications, filings and registrations;
(v) will, if the offering pursuant to any registration statement is, at the written request of the Secured PartyAdministrative Agent, to be made through underwriters, itself, if requested by such underwriters, enter, and use best efforts to cause the Issuer to enter, into an underwriting agreement in customary form with such underwriters and to indemnify such underwriters, its their officers and directors and each person who controls such underwriters within the meaning of the Securities Act to the same extent as hereinbefore provided with respect to the indemnification of the Secured PartyParties;
(vi) will provide (if available) at its expense, provided such insurance is available at commercially reasonable rates, a policy or policies of such insurer or insurers satisfactory to the Secured PartyParties, in substance indemnifying and holding harmless to the extent of 100% of the contemplated aggregate public offering price of the Pledged Collateral, the each Secured Party, each underwriter who may be participating in such sale, and each other person referred to as being insured under such policy or policies, from and against any and all losses, liabilities, claims, damages and expenses, joint or several, to which any of the assured may become subject under the Securities Act, or any other statute or common law, arising out of or based on the ground that any preliminary prospectus, prospectus or registration statement relating to such sale includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(vii) will use best efforts to take or cause to be taken all requisite action in connection with any declaration of, registration with, or approval of any other governmental official or authority (in addition to that provided for above) before such Pledged Collateral may be transferred or sold by the Secured PartyAdministrative Agent;
(viii) will use best efforts to cause the Secured Party Administrative Agent to be kept advised in writing as to the progress of each registration, qualification or compliance pursuant to clauses (i), (iv) or (vii) above and as to the completion thereof;
(ix) will do any and all other acts and things which may be reasonably necessary or advisable to enable the Secured Party Administrative Agent to consummate any proposed sale or other disposition of any of the Pledged Collateral pursuant to this Agreement; and
(x) will bear all costs and expenses of carrying out its obligations hereunder. The Pledgor agrees that promptly upon the written request of the Secured Party Administrative Agent it will use its best efforts to cause to be withdrawn from registration or, if the registration statement has been declared effective, to be deregistered any of the Pledged Collateral the Secured Party Administrative Agent requests be withdrawn or deregistered.
(b) The Pledgor agrees that the Secured Party Parties shall have the right, at any time when in the Secured PartyAdministrative Agent’s sole and exclusive judgment exercised in good faith, the Secured Party Administrative Agent is, or might be deemed to be, a controlling person of the Issuer (i) to participate in the preparation of such registration statement and to require the insertion therein of material which in its judgment, as aforesaid, should be included; (ii) at the Pledgor’s expense, to retain counsel and/or independent public accountants to assist it them in such participation; and (iii) at the Pledgor’s expense, to receive an opinion or opinions of counsel and a letter or letters from independent public accountants, addressed to the Secured PartyParties, to the same effect as any such opinion and letter delivered to the Pledgor, the Issuer or any underwriter in connection with such registration and sale. If any such registration statement refers to the Secured Party Parties by name or otherwise, then, the Secured Party Parties shall have the right to require (A) the insertion therein of language, in form and substance satisfactory to it, to the effect that its relationship to the Pledgor or the Issuer is not to be construed as a recommendation by any Secured Party of the investment quality of the Issuer’s securities covered thereby and does not imply that it they will assist in meeting any future financial requirements of the Pledgor or the Issuer, or (B) in the event that such reference to it by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to it.
(c) The Pledgor agrees that it will give the Secured Party Administrative Agent prompt written notification of (i) the filing of any registration statement pursuant to Section 12 of the 1934 Act (a “1934 Act Registration Statement”) relating to any class of equity securities of any Issuer, and (ii) the effectiveness of such Registration Statement and the number of shares of such class of equity securities outstanding at the time such Registration Statement becomes effective, in order that the Secured Party Administrative Agent may be in a position to file any required statements under the 1934 Act or the Securities Act. The Pledgor further agrees that it will (A) at its expense, upon Secured PartyAdministrative Agent’s written request, use best efforts to cause the Issuer to file a 1934 Act Registration Statement relating to any class of equity securities of the Issuer then held by Secured PartyAdministrative Agent; (B) use best efforts to cause the Issuer to file all reports required by Section 13 of the 1934 Act within the time periods specified therein or any extension thereof granted by the Securities and Exchange Commission pursuant to Rule 12b-25 or any other comparable rule under the 1934 Act; and (C) use best efforts to cause the Issuer to furnish to Secured Party Administrative Agent any information which the Secured Party Parties may reasonably required require for the purpose of completing Form 144, or any other comparable form, in connection with any proposed sale by Secured Party Administrative Agent pursuant to Rule 144 under the Securities Act, as then in effect, or any other comparable rule, of any of the Pledged Collateral.
(d) In the event that any action required to be taken by Pledgor under Subsection 11.4(a)(i), (ii), (iv), (vi), (vii) or (viii), or under Subsection 11.4(b)(i), (i) or (iii) or under Subsection 11.4(c) involves the incurring of costs and expenses by any Issuer, it is understood and agreed that Pledgor shall not be required to take such action unless it shall have available to it funds in amounts sufficient to reimburse the Issuer for such costs and expenses to be incurred by the Issuer. Funds shall be deemed available to the Pledgor for the foregoing purposes if the Secured Party Parties are willing to advance funds to the Pledgor for such purposes on substantially the same terms and conditions as the loans evidenced by the Note; provided, however, the provisions of this paragraph shall not in any way constitute a commitment on the part of the Secured Party Parties to provide such funds.
Appears in 1 contract
Sources: Pledge Agreement (Tracinda Corp)
Public Sales. (a) In the event the Secured Party Lender is permitted to sell any of the Pledged Collateral pursuant to Section 11.1, upon the written request of the Secured PartyLender, the PledgorBorrower:
(i) unless in the opinion of counsel for the Secured Party Lender such registration is not required, will use its best efforts to cause to become effective under the Securities Act of 1933, as amended and as from time to time in effect and the rules and regulations thereunder (the “Securities Act”), a registration statement or statements relating to any or all of the Pledged Collateral and will use its best efforts to keep effective each such registration and cause to be filed such post-effective amendment or amendments to each such registration statement (including any amended or supplemented prospectuses required by the Securities Act) as may be appropriate to permit the sale or other disposition of any of the Pledged Collateral pursuant to this Agreement at such time and on such terms as the Secured Party Lender may determine;
(ii) will use best efforts to cause to be furnished to the Secured Party Lender, such number of copies as the Secured Party Lender may reasonably request of each preliminary prospectus and prospectus, will promptly notify the Secured Party Lender of the happening of any event as a result of which any then effective prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of then existing circumstances and will use best efforts to cause the Secured Party Lender to be furnished with such number of copies as the Secured Party Lender may reasonably request of each such supplement to or amendment of such prospectus as is necessary to eliminate such untrue statement or supply such omission;
(iii) will use best efforts to cause each Issuer to and will itself to the extent permitted by law, indemnify, defend and hold harmless the Secured Party Lender from and against all losses, liabilities, expenses or claims (including legal expenses and the reasonable costs of investigation) which Secured Party the Lender may incur, under the Securities Act or otherwise, insofar as such losses, liabilities, expenses or claims arise out of or are based upon any alleged untrue statement of a material fact contained in such registration statement (or any amendment thereto) or in any preliminary prospectus or prospectus (or any amendment or supplement thereto), or arise out of or are based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except to the extent that any such losses, liabilities, expenses or claims arise solely out of or are based upon any such alleged untrue statement made or such alleged omission to state a material fact with respect to information furnished by a Secured Party the Lender and included in any such document on the written authority of the Secured PartyLender;
(iv) will use its best efforts to have qualified, filed or registered any of the Pledged Collateral under the “Blue Sky” or other securities laws of such jurisdictions as may be reasonably requested by the Secured Party Lender and will use best efforts to cause to be kept effective all such qualifications, filings and registrations;
(v) will, if the offering pursuant to any registration statement is, at the written request of the Secured PartyLender, to be made through underwriters, itself, if requested by such underwriters, enter, and use best efforts to cause the Issuer to enter, into an underwriting agreement in customary form with such underwriters and to indemnify such underwriters, its officers and directors and each person who controls such underwriters within the meaning of the Securities Act to the same extent as hereinbefore provided with respect to the indemnification of the Secured PartyLender;
(vi) will provide (if available) at its expense, provided such insurance is available at commercially reasonable rates, a policy or policies of insurance, from such insurer or insurers satisfactory to the Secured PartyLender, in substance indemnifying and holding harmless to the extent of 100% of the contemplated aggregate public offering price of the Pledged Collateral, the Secured PartyLender, each underwriter who may be participating in such sale, and each other person referred to as being insured under such policy or policies, from and against any and all losses, liabilities, claims, damages and expenses, joint or several, to which any of the assured may become subject under the Securities Act, or any other statute or common law, arising out of or based on the ground that any preliminary prospectus, prospectus or registration statement relating to such sale includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(vii) will use best efforts to take or cause to be taken all requisite action in connection with any declaration of, registration with, or approval of any other governmental official or authority (in addition to that provided for above) before such Pledged Collateral may be transferred or sold by the Secured PartyLender;
(viii) will use best efforts to cause the Secured Party Lender to be kept advised in writing as to the progress of each registration, qualification or compliance pursuant to clauses (i), (iv) or (vii) above and as to the completion thereof;
(ix) will do any and all other acts and things which may be reasonably necessary or advisable to enable the Secured Party Lender to consummate any proposed sale or other disposition of any of the Pledged Collateral pursuant to this Agreement; and
(x) will bear all costs and expenses of carrying out its obligations hereunder. The Pledgor Borrower agrees that promptly upon the written request of the Secured Party Lender it will use its best efforts to cause to be withdrawn from registration or, if the registration statement has been declared effective, to be deregistered deregistered, any of the Pledged Collateral the Secured Party Lender requests be withdrawn or deregistered.
(b) The Pledgor Borrower agrees that the Secured Party Lender shall have the right, at any time when in the Secured PartyLender’s sole and exclusive judgment exercised in good faith, the Secured Party Lender is, or might be deemed to be, a controlling person of the Issuer (i) to participate in the preparation of such registration statement and to require the insertion therein of material which in its judgment, as aforesaid, should be included; (ii) at the PledgorBorrower’s expense, to retain counsel and/or independent public accountants to assist it in such participation; and (iii) at the PledgorBorrower’s expense, to receive an opinion or opinions of counsel and a letter or letters from independent public accountants, addressed to the Secured PartyLender, to the same effect as any such opinion and letter delivered to the PledgorBorrower, the Issuer or any underwriter in connection with such registration and sale. If any such registration statement refers to the Secured Party Lender by name or otherwise, then, the Secured Party Lender shall have the right to require (A) the insertion therein of language, in form and substance satisfactory to it, to the effect that its relationship to the Pledgor Borrower or the Issuer is not to be construed as a recommendation by Secured Party the Lender of the investment quality of the Issuer’s securities covered thereby and does not imply that it will assist in meeting any future financial requirements of the Pledgor Borrower or the Issuer, or (B) in the event that such reference to it by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to it.
(c) The Pledgor Borrower agrees that it will give the Secured Party Lender prompt written notification of (i) the filing of any registration statement pursuant to Section 12 of the 1934 Act (a “1934 Act Registration Statement”) relating to any class of equity securities of any Issuer, and (ii) the effectiveness of such Registration Statement and the number of shares of such class of equity securities outstanding at the time such Registration Statement becomes effective, in order that the Secured Party Lender may be in a position to file any required statements under the 1934 Act or the Securities Act. The Pledgor Borrower further agrees that it will (A) at its expense, upon Secured Partythe Lender’s written request, use best efforts to cause the Issuer to file a 1934 Act Registration Statement relating to any class of equity securities of the Issuer then held by Secured Partythe Lender; (B) use best efforts to cause the Issuer to file all reports required by Section 13 of the 1934 Act within the time periods specified therein or any extension thereof granted by the Securities and Exchange Commission pursuant to Rule 12b-25 or any other comparable rule under the 1934 Act; and (C) use best efforts to cause the Issuer to furnish to Secured Party the Lender any information which the Secured Party Lender may reasonably required for the purpose of completing Form 144, or any other comparable form, in connection with any proposed sale by Secured Party the Lender pursuant to Rule 144 under the Securities Act, as then in effect, or any other comparable rule, of any of the Pledged Collateral.
(d) In the event that any action required to be taken by Pledgor the Borrower under Subsection 11.4(a)(i), (ii), (iv), (vi), (vii) or (viii), or under Subsection 11.4(b)(i), (iii) or (iii) or under Subsection 11.4(c) involves the incurring of costs and expenses by any Issuer, it is understood and agreed that Pledgor the Borrower shall not be required to take such action unless it shall have available to it funds in amounts sufficient to reimburse the Issuer for such costs and expenses to be incurred by the Issuer. Funds shall be deemed available to the Pledgor Borrower for the foregoing purposes if the Secured Party are Lender is willing to advance funds to the Pledgor Borrower for such purposes on substantially the same terms and conditions as the loans evidenced by Loans provided under the NoteLetter Agreement; provided, however, the provisions of this paragraph shall not in any way constitute a commitment on the part of the Secured Party Lender to provide such funds.
Appears in 1 contract
Sources: Pledge Agreement (Tracinda Corp)