COMMERCIAL PAPER DEALER AGREEMENT 3(a)(3) PROGRAM between CHS Inc., as Issuer and SunTrust Capital Markets, Inc., as Dealer
COMMERCIAL PAPER DEALER AGREEMENT
3(a)(3) PROGRAM
3(a)(3) PROGRAM
between
CHS Inc., as Issuer
and
SunTrust Capital Markets, Inc., as Dealer
Concerning Notes to be issued pursuant to an Issuing and Paying
Agency Agreement dated as of October 6, 2006, between the Issuer and
U.S. Bank National Association, as Issuing and Paying Agent, the
(“Issuing and Paying Agency Agreement”).
Dated as of
October 6, 2006
COMMERCIAL PAPER DEALER AGREEMENT
3(a)(3) Program
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. The reference to Notes under
this Agreement includes only Notes sold by or 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.
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 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 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 containing substantially the same terms as this Agreement, of
which the Issuer hereby undertakes to provide the Dealer prompt notice.
1.3 The Notes sold by or through the Dealer 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.
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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 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.
1.5 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 upon notice of such
failure. 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.
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 State of Minnesota 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 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).
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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.
2.5 The Notes will rank at least pari passu with all other senior unsecured 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 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 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 financial condition,
operations or business of the Issuer and its subsidiaries taken as a whole, the validity of the
Notes, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or
the Issuing and Paying Agency Agreement.
2.8 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 financial condition, operations or business of the Issuer and its
subsidiaries taken as a whole, or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 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.
2.11 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
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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 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 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.
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 financial
condition, operations or business 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, 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, if applicable, 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 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 sales 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.
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3.7 The Issuer shall not issue Notes hereunder until the Dealer shall have received (a) an
opinion of counsel to the Issuer (which may be internal counsel) 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 execution and delivery by the Issuer of this Agreement,
the Issuing and Paying Agency Agreement and the Notes 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, opinions, letters and documents as the Dealer shall have reasonably requested.
3.8 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 fees and out-of-pocket expenses of the Dealer’s counsel.
Section 4. Disclosure.
4.1 The 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 consistent with the provisions and intent of this Agreement.
All Offering Materials distributed by the Dealer shall be approved in writing by the Issuer prior
to distribution.
4.2 The Issuer agrees to promptly 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 is then holding Notes 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 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.
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(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.
Section 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 one or more
of 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; provided, however, that the Issuer shall not be liable to or be under any obligation to
indemnify or save harmless any Indemnitee in respect of (ii) herein where it shall be finally
judicially determined, by a court a of competent jurisidiction, that such breach by the Issuer was
caused by the bad faith, gross negligence, or willful misconduct of an Indemnitee. 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 B 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, that 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.
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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 other publicly available recent reports filed by the Issuer with the SEC, including, but
not limited to, any publicly available filings or reports provided to its shareholders generally,
(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.
6.7 “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.
6.9 “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.
6.10 “Offering Materials” shall mean offering materials prepared in accordance with Section 4
(including materials referred to therein or incorporated by reference therein) 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 amendment or supplement).
6.12 “SEC” shall mean the U.S. Securities and Exchange Commission.
6.15 “Securities Act” shall mean the U.S. Securities Act of 1933, as amended.
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Section 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 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 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, but such assignment shall not relieve the Dealer of
responsibility for such obligations.
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
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the
date and year first above written.
| CHS Inc., as Issuer |
|||||
| By: | /s/ Xxxx Xxxxxxx | ||||
| Name: Xxxx Xxxxxxx | |||||
| Title: Executive Vice President and | |||||
| Chief Financial Officer | |||||
| SunTrust Capital Markets, Inc., as Dealer |
|||||
| By: | /s/ Xxxxx Xxxxx | ||||
| Name: Xxxxx Xxxxx | |||||
| Title: Director | |||||
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ADDENDUM
The addresses of the respective parties for purposes of notices under Section 7.1 are as follows:
| For the Issuer: | ||||||
| Address: | 0000 Xxxxx Xxxxx | |||||
| Xxxxx Xxxxx Xxxxxxx, XX 00000 | ||||||
| Attention: | Xxxx Xxxxxxx | |||||
| Telephone number: | 000-000-0000 | |||||
| For the Dealer: | ||||||
| Address: | 000 Xxxxxxxxx Xxxxxx | |||||
| 00xx floor | ||||||
| Attention: | Xxxx Xxxxxxx | |||||
| Telephone number: | 000-000-0000 | |||||
| Fax number: | 000-000-0000 |
EXHIBIT A
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
(a) The Issuer agrees to reimburse each Indemnitee for all reasonable expenses (including
reasonable fees and disbursements of 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 any 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, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, 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, for all the Indemnitees), (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 to the entry of judgement includes a release (a) of each Indemnitee from any liabilities arising out of such Claim, which release (b) has been consented to by the Dealer prior to its effectiveness. With respect to the giving of consent by the Dealer herein, the Dealer agrees that such consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein or in the Agreement, the Issuer shall not be required to indemnify any Indemnitee for any amount paid or payable by any Indemnitees as a result of or pursuant to the settlement or other compromise of any Claims unless the Issuer shall have consented to such settlement or compromise in writing. |
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