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[▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LOGO] EXHIBIT 10.28
Commercial Paper Dealer Agreement
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3(a)3 Program
Between:
Lafarge Corporation, as Issuer and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., as Dealer
Concerning Notes to be issued pursuant to an Issuing and Paying Agency Agreement
dated as of March 2, 2001 between the Issuer and Citibank, N.A., as Issuing and
Paying Agent
Dated as of
March 2, 2001
COMMERCIAL PAPER DEALER AGREEMENT
3(a)3 PROGRAM
This agreement ("Agreement") sets forth the understandings between the Issuer
and the Dealer, each named on the cover page hereof, in connection with the
issuance and sale by the Issuer of its short-term promissory notes (the "Notes")
through the Dealer.
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described in this
Agreement or such Addendum, are hereby incorporated into this Agreement and made
fully a part hereof.
1. ISSUANCE AND SALE OF NOTES.
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale
of the Notes for the account of the Issuer, and (ii) the Dealer
has and shall have no obligation to purchase the Notes from the
Issuer or to arrange any sale of the Notes for the account of the
Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale
of Notes by the Issuer, such Notes will be purchased or sold by
the Dealer in reliance on the representations, warranties,
covenants and agreements of the Issuer contained herein or made
pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, the Issuer shall
not, without the consent of the Dealer, offer, solicit or accept
offers to purchase, or sell, any Notes or notes substantially
similar to the Notes in reliance upon the exemption from
registration under the Securities Act contained in Section 3(a)
(3) thereof, except (a) in transactions with one or more dealers
which may from time to time after the date
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hereof become dealers with respect to the Notes by executing with the
Issuer one or more agreements, of which the Issuer hereby undertakes
to provide the Dealer prompt notice, (b) in transactions with the
other dealers listed on the Addendum hereto, which are executing
agreements with the Issuer contemporaneously herewith, or (c) directly
on its own behalf in transactions with persons other than
broker-dealers with respect to which no commission is payable.
1.3 The Notes shall be in a minimum denomination of $100,000 or integral
multiples of $1,000 in excess thereof, will bear such interest rates,
if interest bearing, or will be sold at such discount from their face
amounts, as shall be agreed upon by the Dealer and the Issuer; shall
have a maturity not exceeding 270 days from the date of issuance
(exclusive of days of grace); and shall not contain any provision for
extension, renewal or automatic "rollover." The Notes shall be issued
in the ordinary course of the Issuer's business.
1.4 The authentication and issuance of, and payment for, the Notes shall
be effected in accordance with the Issuing and Paying Agency
Agreement, and the Notes shall be either individual physical
certificates or book-entry notes evidenced by a Master Note registered
in the name of DTC or its nominee, in the form or forms annexed to the
Issuing and Paying Agency Agreement(1).
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase
of any Note by the Dealer or the sale of any Note arranged by the
Dealer (including, but not limited to, agreement with respect to the
date of issue, purchase price, principal amount, maturity and interest
rate (in the case of interest-bearing Notes) or discount thereof (in
the case of Notes issued on a discount basis), and appropriate
compensation for the Dealer's services hereunder) pursuant to this
Agreement, the Issuer shall cause such Note to be issued and delivered
in accordance with the terms of the Issuing and Paying Agency
Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to the Issuing and
Paying Agent, for the account of the Issuer. Except as otherwise
agreed, in the event that the Dealer is acting as an agent and a
purchaser shall either fail to accept delivery of or make payment for
a Note on the date fixed for settlement, the Dealer shall promptly
notify the Issuer, and if the Dealer has theretofore paid the Issuer
for the Note, the Issuer will promptly return such funds to the Dealer
against its return of the Note to the Issuer, in the case of a
certificated Note, and upon notice of such failure in the case of a
book-entry Note. If such failure occurred for any reason other than
default by the Dealer, the Issuer shall reimburse the Dealer on an
equitable basis for the Dealer's loss of the use of such funds for the
period such funds were credited to the Issuer's account.
2. REPRESENTATIONS AND WARRANTIES OF ISSUER.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation
and has all the requisite power and authority to execute, deliver and
perform its obligations under the Notes, this Agreement and the
Issuing and Paying Agency Agreement.
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(1) If the form or forms of Notes are not annexed to the Issuing and Paying
Agency Agreement, they should be annexed to this Agreement or delivered to
the Dealer, with appropriate certification by the Secretary of the Issuer,
pursuant to section 3.6 of this Agreement.
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2.2 This Agreement and the Issuing and Paying Agency Agreement have been
duly authorized, executed and delivered by the Issuer and constitute
legal, valid and binding obligations of the Issuer enforceable against
the Issuer in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
2.3 The Notes have been duly authorized, and when issued as provided in
the Issuing and Paying Agency Agreement, will be duly and validly
issued and will constitute legal, valid and binding obligations of the
Issuer enforceable against the Issuer in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
2.4 The Notes are not required to be registered under the Securities Act,
pursuant to the exemption from registration contained in Section
3(a)(3) thereof, and no indenture in respect of the Notes is required
to be qualified under the Trust Indenture Act of 1939, as amended; and
the Notes are and will be rated as "prime quality" commercial paper by
at least one nationally recognized statistical rating organization and
will rank at least pari passu with all other unsecured and
unsubordinated indebtedness of the Issuer.
2.5 No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the
SEC, is required to authorize, or is otherwise required in connection
with the execution, delivery or performance of, this Agreement, the
Notes or the Issuing and Paying Agency Agreement, except as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes.
2.6 Neither the execution and delivery of this Agreement and the Issuing
and Paying Agency Agreement, nor the issuance of the Notes in
accordance with the Issuing and Paying Agency Agreement, nor the
fulfillment of or compliance with the terms and provisions hereof or
thereof by the Issuer, will (i) result in the creation or imposition
of any mortgage, lien, charge or encumbrance of any nature whatsoever
upon any of the properties or assets of the Issuer, or (ii) violate or
result in a breach or a default under any of the terms of the Issuer's
charter documents or by-laws, any contract or instrument to which the
Issuer is a party or by which it or its property is bound, or any law
or regulation, or any order, writ, injunction or decree of any court
or government instrumentality, to which the Issuer is subject or by
which it or its property is bound, which breach or default might have
a material adverse effect on the condition (financial or otherwise),
operations or business prospects of the Issuer or the ability of the
Issuer to perform its obligations under this Agreement, the Notes or
the Issuing and Paying Agency Agreement.
2.7 There is no litigation or governmental proceeding pending, or to the
knowledge of the Issuer threatened, against or affecting the Issuer or
any of its subsidiaries which might result in a material adverse
change in the condition (financial or otherwise), operations or
business prospects of the Issuer or the ability of the Issuer to
perform its obligations under this Agreement, the Notes or the Issuing
and Paying Agency Agreement.
2.8 The Issuer is not an "investment company" or an entity "controlled" by
an "investment
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company" within the meaning of the Investment Company Act of 1940, as
amended.
2.9 Neither the Offering Materials nor the Company Information contains
any 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, in light of the circumstances under which they were made, not
misleading.
2.10 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment
or supplement of the Offering Materials shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the
date thereof, that, both before and after giving effect to such
issuance, and after giving effect to such amendment or supplement, (i)
the representations and warranties given by the Issuer set forth above
in this Section 2 remain true and correct on and as of such date as if
made on and as of such date, (ii) in the case of an issuance of Notes,
the Notes being issued on such date have been duly and validly issued
and constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is
sought in a proceeding inequity or at law), (iii) in the case of an
issuance of Notes, since the date of the most recent Offering
Materials, there has been no material adverse change in the condition
(financial or otherwise), operations or business prospects of the
Issuer which has not been disclosed to the Dealer in writing and (iv)
the Issuer is not in default of any of its obligations hereunder,
under the Notes or under the Issuing and Paying Agency Agreement.
3. COVENANTS AND AGREEMENTS OF ISSUER.
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in any event prior
to any subsequent issuance of Notes hereunder) of any amendment to,
modification of or waiver with respect to, the Notes or the Issuing
and Paying Agency Agreement, including a complete copy of any such
amendment, modification or waiver.
3.2 The Issuer shall, whenever there shall occur any change in the
Issuer's condition (financial or otherwise), operations or business
prospects or any development or occurrence in relation to the Issuer
that would be material to holders of the Notes or potential holders of
the Notes (including any downgrading or receipt of any notice of
intended or potential downgrading or any review for potential change
in the rating accorded any of the Issuer's securities by any
nationally recognized statistical rating organization which has
published a rating of the Notes), promptly, and in any event prior to
any subsequent issuance of Notes hereunder, notify the Dealer (by
telephone, confirmed in writing) of such change, development or
occurrence.
3.3 The Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including, without
limitation, any press releases or material provided by the Issuer to
any national securities exchange or rating agency, regarding (i) the
Issuer's operations and financial condition, (ii) the due
authorization and execution of the Notes and (iii) the Issuer's
ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will
comply with any applicable state Blue Sky
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laws; provided, however, that the Issuer shall not be obligated to
file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified or subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject.
3.5 The Issuer will use the proceeds of the sale of the Notes for "current
transactions" within the meaning of Section 3(a)(3) of the Securities
Act.
3.6 The Issuer will not be in default of any of its obligations hereunder,
under the Notes or under the Issuing and Paying Agency Agreement, at
any time that any of the Notes are outstanding.
3.7 The Issuer shall not issue Notes hereunder until the Dealer shall have
received (a) an opinion of counsel to the Issuer, addressed to the
Dealer, satisfactory in form and substance to the Dealer, (b) a copy
of the executed Issuing and Paying Agency Agreement as then in effect,
(c) a copy of resolutions adopted by the Board of Directors of the
Issuer, satisfactory in form and substance to the Dealer and certified
by the Secretary or similar officer of the Issuer authorizing the
execution and delivery by the Issuer of this Agreement, the Notes and
the Issuing and Paying Agency Agreement and consummation by the Issuer
of the transactions contemplated hereby and thereby, (d) prior to the
issuance of any Notes represented by a book-entry Note registered in
the name of DTC or its nominee, a copy of the executed Letter of
Representations among the Issuer, the Issuing and Paying Agent and DTC
and (e) such other certificates, letters, opinions and documents as
the Dealer shall have reasonably requested.
3.8 The Issuer shall reimburse the Dealer for all of the Dealer's
out-of-pocket expenses related to this Agreement, including expenses
incurred in connection with its preparation and negotiation, and the
transactions contemplated hereby (including, but not limited to, the
printing and distribution of the Offering Materials and any
advertising expense), and, if applicable, for the reasonable fees and
out-of-pocket expenses of the Dealer's counsel.
4. DISCLOSURE.
4.1 Offering Materials which may be provided to purchasers and prospective
purchasers of the Notes shall be prepared for use in connection with
the transactions contemplated by this Agreement. The Offering
Materials and their contents (other than the Dealer Information) shall
be the sole responsibility of the Issuer. The Issuer authorizes the
Dealer to distribute the Offering Materials as determined by the
Dealer.
4.2 The Issuer agrees promptly to furnish the Dealer the Company
Information as it becomes available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon the
occurrence of any event relating to or affecting the Issuer that would
cause the Offering Materials then in existence to include an untrue
statement of a material fact or to omit to state a material fact
necessary in order to make the statements contained therein, in light
of the circumstances under which they are made, not misleading.
(b) In the event that the issuer gives the Dealer notice pursuant to
Section 4.3(a) and the Dealer notifies the Issuer that it then has
Notes it is holding in inventory, the Issuer agrees promptly to
supplement or amend the Offering Materials so that the Offering
Materials, as amended or supplemented, shall not contain an untrue
statement of a
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material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading, and the Issuer shall make such
supplement or amendment available to the Dealer.
(c) In the event that (i) the Issuer gives the Dealer notice pursuant
to Section 4.3(a), (ii) the Dealer does not notify the Issuer that it
is then holding Notes in inventory and (iii) the Issuer chooses not to
promptly amend or supplement the Offering Materials in the manner
described in clause (b) above, then all solicitations and sales of
Notes shall be suspended until such time as the Issuer has so amended
or supplemented the Offering Materials, and made such amendment or
supplement available to the Dealer.
5. INDEMNIFICATION AND CONTRIBUTION.
5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other
entity controlling the Dealer, any affiliate of the Dealer or any such
controlling entity and their respective directors, officers,
employees, partners, incorporators, shareholders, servants, trustees
and agents (hereinafter the "Indemnitees") against any and all
liabilities, penalties, suits, causes of action, losses, damages,
claims, costs and expenses (including, without limitation, fees and
disbursements of counsel) or judgments of whatever kind or nature
(each a "Claim"), imposed upon, incurred by or asserted against the
Indemnitees arising out of or based upon (i) any allegation that the
Offering Materials, the Company Information or any information
provided by the Issuer to the Dealer included (as of any relevant
time) or includes an untrue statement of a material fact or omitted
(as of any relevant time) or omits to state any material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (ii)
arising out of or based upon the breach by the Issuer of any
agreement, covenant or representation made in or pursuant to this
Agreement. This indemnification shall not apply to the extent that the
Claim arises out of or is based upon Dealer Information.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit A to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this
Section 5 is held to be unavailable or insufficient to hold harmless
the Indemnitees, although applicable in accordance with the terms of
this Section 5, the Issuer shall contribute to the aggregate costs
incurred by the Dealer in connection with any Claim in the proportion
of the respective economic interests of the Issuer and the Dealer;
provided, however, such contribution by the Issuer shall be in an
amount such that the aggregate costs incurred by the Dealer do not
exceed the aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which such
Claim relates. The respective economic interests shall be calculated
by reference to the aggregate proceeds to the Issuer of the Notes
issued hereunder and the aggregate commissions and fees earned by the
Dealer hereunder.
6. DEFINITIONS.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Offering
Materials together with, to the extent applicable, (i) the Issuer's
most recent report on Form 10-K filed
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with the SEC and each report on Form 10-Q or 8-K filed by the Issuer
with the SEC since the most recent Form 10-K, (ii) the Issuer's most
recent annual audited financial statements and each interim financial
statement or report prepared subsequent thereto, if not included in
item (i) above, (iii) the Issuer's and its affiliates' other publicly
available recent reports, including, but not limited to, any publicly
available filings or reports provided to their respective
shareholders, (iv) any other information or disclosure prepared
pursuant to Section 4.3 hereof and (v) any information prepared or
approved by the Issuer for dissemination to investors or potential
investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer
provided by the Dealer in writing expressly for inclusion in the
Offering Materials.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.6 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement,
as such agreement may be amended or supplemented from time to time.
6.7 "Issuing and Paying Agent" shall mean the party designated as such on
the cover page of this Agreement, as issuing and paying agent under
the Issuing and Paying Agency Agreement, or any successor thereto in
accordance with the Issuing and Paying Agency Agreement.
6.8 "Offering Materials" shall mean offering materials prepared in
accordance with Section 4, which may be provided to purchasers and
prospective purchasers of the Notes, and shall include amendments and
supplements thereto which may be prepared from time to time in
accordance with this Agreement (other than any amendment or supplement
that has been completely superseded by a later supplement or
amendment).
6.9 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.10 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
7. GENERAL.
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective
when received at the address of the respective party set forth in the
Addendum to this Agreement.
7.2 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflict of
laws provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought by the
Issuer against the Dealer in connection with or arising out of this
Agreement or the Notes or the offer and sale of the Notes shall be
brought solely in the United States federal courts located in the
Borough of Manhattan or the courts of the State of New York located in
the Borough of Manhattan. EACH OF THE DEALER AND THE ISSUER WAIVES ITS
RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer, upon one
business
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day's prior notice to such effect to the Dealer, or by the Dealer upon
one business day's prior notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of the Issuer
under Sections 3.8, 5 and 7.3 hereof or the respective
representations, warranties, agreements, covenants, rights or
responsibilities of the parties made or arising prior to the
termination of this Agreement.
7.5 This Agreement is not assignable by either party hereto without the
written consent of the other party; provided, however, that the Dealer
may assign its rights and obligations under this Agreement to any
affiliate of the Dealer.
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties hereto, and
their respective successors and permitted assigns hereunder, and shall
not be deemed to give any legal or equitable right, remedy or claim to
any other person whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
Lafarge Corporation, AS ISSUER ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., AS DEALER
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer Title: Director, Money Markets Origination
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ADDENDUM
The following additional clauses shall apply to the Agreement and be deemed a
part thereof when the respective parties have placed their initials in the left
margin beside the respective paragraph number.
1. The other dealers referred to in clause (b) of Section 1.2 of the
Agreement are Suntrust Equitable Securities Corporation.
2. The following Section 3.9 is hereby added to the Agreement:
3.9 Without limiting any obligation of the Issuer pursuant to this
Agreement to provide the Dealer with credit and financial information,
the Issuer hereby acknowledges and agrees that the Dealer may share the
Company Information and any other information or matters relating to
the Issuer or the transactions contemplated hereby with affiliates of
the Dealer, including, but not limited to, Citibank N.A. and that such
affiliates may likewise share information relating to the Issuer or
such transactions with the Dealer.
3. The addresses of the respective parties for purposes of notices under Section
7.1 are as follows:
For the Issuer:
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Treasurer
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
For the Dealer:
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Money Markets Origination
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
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EXHIBIT A
FURTHER PROVISIONS RELATING TO INDEMNIFICATION
(a) The Issuer agrees to reimburse each Indemnitee for all expenses
(including reasonable fees and disbursements of internal and external
counsel) as they are incurred by it in connection with investigating
or defending any loss, claim, damage, liability or action in respect
of which indemnification may be sought under Section 5 of the
Agreement (whether or not it is a party to any such proceedings).
(b) Promptly after receipt by an Indemnitee of notice of the existence of
a Claim, such Indemnitee will, if a claim in respect thereof is to be
made against the Issuer, notify the Issuer in writing of the existence
thereof; provided that (i) the omission so to notify the Issuer will
not relieve the Issuer from any liability which it may have hereunder
unless and except to the extent it did not otherwise learn of such
Claim and such failure results in the forfeiture by the Issuer of
substantial rights and defenses, and (ii) the omission so to notify
the Issuer will not relieve it from liability which it may have to an
Indemnitee otherwise than on account of this indemnity agreement. In
case any such Claim is made against any Indemnitee and it notifies the
Issuer of the existence thereof, the Issuer will be entitled to
participate therein, and to the extent that it may elect by written
notice delivered to the Indemnitee, to assume the defense thereof,
with counsel reasonably satisfactory to such Indemnitee; provided that
if the defendants in any such Claim include both the Indemnitee and
the Issuer, and the Indemnitee shall have concluded that there may be
legal defenses available to it which are different from or additional
to those available to the Issuer, the Issuer shall not have the right
to direct the defense of such Claim on behalf of such Indemnitee, and
the Indemnitee shall have the right to select separate counsel to
assert such legal defenses on behalf of such Indemnitee. Upon receipt
of notice from the Issuer to such Indemnitee of the Issuer's election
so to assume the defense of such Claim and approval by the Indemnitee
of counsel, the Issuer will not be liable to such Indemnitee for
expenses incurred thereafter by the Indemnitee in connection with the
defense thereof (other than reasonable costs of investigation) unless
(i) the Indemnitee shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to
the next preceding sentence (it being understood, however, that the
Issuer shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel in the jurisdiction in which
any Claim is brought), approved by the Dealer, representing the
Indemnitee who is party to such Claim), (ii) the Issuer shall not have
employed counsel reasonably satisfactory to the Indemnitee to
represent the Indemnitee within a reasonable time after notice of
existence of the Claim or (iii) the Issuer has authorized in writing
the employment of counsel for the Indemnitee. The indemnity,
reimbursement and contribution obligations of the Issuer hereunder
shall be in addition to any other liability the Issuer may otherwise
have to an Indemnitee and shall be binding upon and inure to the
benefit of any successors, assigns, heirs and personal representatives
of the Issuer and any Indemnitee. The Issuer agrees that without the
Dealer's prior written consent, it will not settle, compromise or
consent to the entry of any judgment in any Claim in respect of which
indemnification may be sought under the indemnification provision of
the Agreement (whether or not the Dealer or any other Indemnitee is an
actual or potential party to such Claim), unless such settlement,
compromise or consent includes an unconditional release of each
Indemnitee from all liability arising out of such Claim.