Exhibit-4.7
COMMERCIAL PAPER DEALER AGREEMENT
Between:
HARRAH'S OPERATING COMPANY, INC., as Issuer,
HARRAH'S ENTERTAINMENT, INC., as Guarantor,
and
CREDIT SUISSE FIRST BOSTON CORPORATION, as Dealer
Concerning Notes to be issued pursuant to an Issuing and Paying Agency Agreement
dated as of May 19, 2000 between the Issuer and Bank One, National Association,
as Issuing and Paying Agent.
Dated As of
May 3, 2000
COMMERCIAL PAPER DEALER AGREEMENT
3(a)(3) Program
This agreement("Agreement") sets forth the understandings between the Issuer,
the Guarantor and the Dealer, each named above, in connection with the issuance
and sale by the Issuer of its short-term commercial paper promissory notes
through the Dealer (the "Notes") with the guarantee of the Guarantor in the form
attached hereto.
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.
Section 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
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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 and the Guarantor 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
hereof become dealers with respect to the Notes by executing
with the Issuer one or more agreements substantially similar
to this Agreement, 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 substantially similar to
this Agreement 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 or minimum
amount, whichever is applicable, 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
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Notes shall be issued in the ordinary course of the Issuer's
business.
1.4 The authentication, delivery and payment of the Notes shall be
effected in accordance with the Issuing and Paying Agency
Agreement and the Notes shall be either individual bearer
physical certificates or represented by book-entry Notes
registered in the name of DTC or its nominee in the form or
forms annexed to the Issuing and Paying Agency Agreement.
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 Issuer. Except as otherwise agreed, in the
event that the Dealer is acting as an agent and a customer
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.
Section 2. Representations and Warranties of Issuer and the Guarantor.
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The Issuer and the Guarantor jointly and severally represent
and warrant 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.
2.2 The Guarantor is a corporation or limited liability company
duly organized, and validly existing and in good standing
under the laws of the jurisdiction of its incorporation or
organization and has all the requisite power and authority to
execute, deliver and perform its obligations under the
Guarantee, this Agreement and the Issuing and Paying Agency
Agreement.
2.3 This Agreement, the Guarantee and the Issuing and Paying
Agency Agreement have been duly authorized, executed and
delivered by the Issuer and the Guarantor and constitute
legal, valid and binding obligations of the Issuer and the
Guarantor enforceable against the Issuer and the Guarantor 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 and the Guarantee have been duly authorized, and
when issued and delivered as provided in the Issuing and
Paying Agency Agreement, will be duly and validly issued and
delivered and will constitute legal, valid and binding
obligations of the Issuer and the Guarantor enforceable
against the Issuer and the Guarantor 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
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enforcement is sought in a proceeding in equity or at law).
2.5 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.
2.6 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 Guarantee, 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.
2.7 Neither the execution and delivery of this Agreement, the
Guarantee and the Issuing and Paying Agency Agreement, nor the
issuance and delivery 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 and the Guarantor, 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 and the Guarantor, or (ii) violate or result in a
breach or an event of default under any of the terms of the
Issuer's charter documents or by-laws, any contract or
instrument to which the Issuer and the Guarantor 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
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Issuer and the Guarantor is subject or by which it or its
property is bound, which breach or event of default might have
a material adverse effect on the condition (financial or
otherwise), operations or business prospects of the Issuer and
the Guarantor or the ability of the Issuer and the Guarantor
to perform its obligations under this Agreement, the
Guarantee, the Notes or the Issuing and Paying Agency
Agreement.
2.8 Neither the Issuer nor the Guarantor will not be in default of
any of its obligations hereunder, under the Notes, the
Guarantee or under the Issuing and Paying Agency Agreement, at
any time that any of the Notes are outstanding.
2.9 There is no litigation or governmental proceeding pending, or
to the knowledge of the Issuer and the Guarantor threatened,
against or affecting the Issuer or the Guarantor 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 and the Guarantor or the
ability of the Issuer and the Guarantor to perform its
obligations under this Agreement, the Guarantee, the Notes or
the Issuing and Paying Agency Agreement.
2.10 Neither the Issuer nor the Guarantor is an "investment
company" or an entity "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended.
2.11 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.
2.12 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 and the
Guarantor to the Dealer, as of the date thereof,
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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 and the
Guarantor 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 with the
Guarantee, the Notes being issued on such date have been duly
and validly issued and constitute legal, valid and binding
obligations of the Issuer and the Guarantor, enforceable
against the Issuer and the Guarantor 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), (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 and the Guarantor 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.
Section 3. Covenants and Agreements of Issuer and the Guarantor. Each of
the Issuer and the Guarantor covenants and agrees that:
3.1 They 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, the Guarantee or the Issuing and Paying Agency
Agreement, including a complete copy of any such amendment,
modification or waiver.
3.2 They shall, whenever there shall occur any change in the
Issuer's or the Guarantor's condition (financial or
otherwise), operations or business prospects or any
development or occurrence in relation to the Issuer and the
Guarantor that would be material to holders of the Notes or
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potential holders of the Notes (including any formal ratings
action (downgrading or otherwise) accorded any of the Issuer's
or the Guarantor'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 They 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 and the Guarantor to any national securities
exchange or rating agency, regarding (i) the Issuer's and the
Guarantor's operations and financial condition, (ii) the due
authorization and execution of the Notes, and (iii) the
Issuer's and the Guarantor's ability to pay the Notes as they
mature.
3.4 They 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 laws; provided,
that neither the Issuer nor the Guarantor shall 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 each sale of the Notes for
"current transactions" within the meaning of Section 3(a)(3)
of the Securities Act.
3.6 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
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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, (e) a copy of the Guarantee,
as is then in effect, (f) a copy of the Guarantor's
resolutions adopted by the Guarantor's Board of Directors
authorizing such Guarantee, (g) an opinion of counsel for the
Guarantor, and, (h) such other certificates, letters, opinions
and documents as the Dealer shall have reasonably requested.
3.7 The Issuer shall reimburse the Dealer for all of the Dealer's
reasonable 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 attorney fees and
out-of-pocket expenses of the Dealer's counsel.
Section 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 or the Guarantor. The Issuer of the Guarantor
authorizes the Dealer to distribute the Offering Materials as
the Dealer shall see fit.
4.2 The Issuer agrees promptly to furnish the Dealer the Company
Information as it becomes available and the Guarantor agrees
to promptly furnish to
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the Dealer Guarantor information as it becomes available.
4.3 (a) The Issuer and the Guarantor further agree to notify the
Dealer promptly upon the occurrence of any event relating to
or affecting the Issuer or the Guarantee that would cause the
Offering Materials then in existence to include an untrue
statement of 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 Dealer notifies the Issuer or the
Guarantor that it has Notes it is holding in inventory, the
Issuer or the Guarantor agree promptly to supplement or amend
the Offering Materials so that such Offering Materials, as
amended or supplemented, shall not contain an untrue statement
of a 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 or the Guarantor shall make such supplement or
amendment available to the Dealer and prospective holders of
Notes.
(c) In the event that (i) the Dealer does not notify the
Issuer or the Guarantor that it is then holding Notes in
inventory and (ii) the Issuer or the Guarantor 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 or the Guarantor has so amended or supplemented the
Offering Materials, and made such amendment or supplement
available to the Dealer and prospective holders of Notes.
Section 5. Indemnification and Contribution.
5.1 The Issuer and the Guarantor will indemnify and hold harmless
the Dealer, each individual, corporation, partnership, trust,
association or other entity controlling the Dealer, any
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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, the Guarantor Information or any
information provided by the Issuer and the Guarantor to the
Dealer includes an untrue statement of a material fact 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 or the Guarantor 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 and
the Guarantor 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, the
Guarantor 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
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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.
Section 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 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
and 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.
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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.
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.
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.
6.11 "Guarantor Information" at any given time shall mean the
Offering Materials together with, to the extent applicable,
(i) the Guarantors' most recent report of Form 10-K filed 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
Guarantors' 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 Guarantors' 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 other information prepared or approved
by the Guarantors for dissemination to investors or potential
investors in the Notes.
6.12 "Guarantee" shall have the meaning set forth in the first
paragraph of this Agreement.
Section 7. General.
7.1 Unless otherwise expressly provided herein, all notices under
this Agreement to parties hereto
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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 Each of the Issuer and the Guarantor agrees that any suit,
action or proceeding brought by the Issuer or the Guarantor
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
ISSUER AND THE GUARANTOR 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
or the Guarantor, upon one business 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 3.7, 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 wholly-owned subsidiary of the
ultimate parent company 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.
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7.7 This Agreement is for the exclusive benefit of the parties
hereto, and their respective permitted successors and 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.
Harrah's Operating Company, Inc., as Issuer
By: /s/ James T. Evans
----------------------------------
Name: James T. Evans
Title: Assistant Treasurer
Harrah's Entertainment, Inc., as Guarantor
By: /s/ James T. Evans
----------------------------------
Name: James T. Evans
Title: Assistant Treasurer
Credit Suisse First Boston Corporation,
as Dealer
By: /s/ Helena Willner
----------------------------------
Name: Helena Willner
Title: Director
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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 dealer referred to in clause (b) of Section 1.2
of the Agreement is : Banc of America Securities, LLC.
2. The addresses of the respective parties for purposes of notices under
Section 7.1 are as follows:
For the Issuer: Harrah's Operating Company, Inc.
Address: 1023 Cherry Road
Memphis, TN 38117
Attention: Tom Evans, Assistant Treasurer
Telephone Number: (901) 537-3439
Fax Number: (901) 537-3443
With a copy to: Harrah's Operating Company, Inc.
Address: 5100 West Sahara Boulevard
Suite 200
Las Vegas, NV 89146
Attention: General Counsel
Telephone: (702) 579-2610
Fax Number: (702) 579-2671
For the Guarantor:Harrah's Entertainment, Inc.
Address: 1023 Cherry Road
Memphis, TN 38117
Attention: Tom Evans, Assistant Treasurer
Telephone Number: (901) 537-3439
Fax Number: (901) 537-3443
For the Dealer: Credit Suisse First Boston Corporation
Address: 11 Madison Avenue
New York, NY 10010
Attention: Short Term Products Group
Telephone Number: (212) 325-7198
Fax Number: (212) 325-8183
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EXHIBIT A
FURTHER PROVISIONS RELATING TO INDEMNIFICAION
(a) The Issuer and the Guarantor jointly and severally agree 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 or the Guarantor, notify the Issuer and the Guarantor
in writing of the existence thereof; provided that (i) the omission so to notify
the Issuer and the Guarantor will not relieve it 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 or the
Guarantor of substantial rights and defenses, and (ii) the omission so to notify
the Issuer and the Guarantor 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
and the Guarantor of the existence thereof, the Issuer and the Guarantor 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 Guarantor 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 or
the Guarantor, the Issuer and the Guarantor 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 or the
Guarantor 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 or the
Guarantor 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
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investigation) unless (i) the Indemnitee shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the provision
to the next preceding sentence (it being understood, however, that the Issuer
and the Guarantor 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 and the Guarantor 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 and
the Guarantor 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 the Guarantor and any Indemnitee. The Issuer and the Guarantor agree
that without the Dealer's prior written consent, they 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.
18