EXHIBIT 1
GENERAL MOTORS ACCEPTANCE CORPORATION
$15,000,000,000
SMARTNOTES(SM)
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
September 30, 2003
Dear Ladies and Gentlemen:
General Motors Acceptance Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell up to $15,000,000,000 aggregate principal
amount of its SmartNotes(SM) Due from Nine Months to Thirty Years from Date of
Issue (the "Notes") to be issued pursuant to the provisions of an Indenture
dated as of September 24, 1996, as supplemented from time to time, between the
Company and JPMorgan Chase Bank, as Trustee (the "Indenture"). The terms of the
Notes are described in the Prospectus referred to below.
Subject to the terms and conditions contained in this Selling Agent
Agreement (the "Agreement"), the Company hereby (1) appoints you as agent of the
Company ("Agent") for the purpose of soliciting purchases of the Notes from the
Company and you hereby agree to use your reasonable best efforts to solicit
offers to purchase Notes upon terms acceptable to the Company at such times and
in such amounts as the Company shall from time to time specify and in accordance
with the terms hereof, but the Company reserves the right to sell Notes directly
on its own behalf and, after consultation with ABN AMRO Financial Services, Inc.
(the "Purchasing Agent"), the Company reserves the right to enter into
agreements substantially identical hereto with other agents and (2) agrees that
whenever the Company determines to sell Notes pursuant to this Agreement, such
Notes shall be sold pursuant to a Terms Agreement relating to such sale in
accordance with the provisions of Section V hereof between the Company and the
Purchasing Agent with the Purchasing Agent purchasing such Notes as principal
for resale to others.
I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement No. XXX-XXXX relating to the Notes and
the offering thereof, from time to time, in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"). Such registration
statement has been declared effective by the Commission, and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Such registration statement and the prospectus filed pursuant
to Rule 424 under the Securities Act, including all documents incorporated
therein by reference, as from time to time
amended or supplemented, including any Pricing Supplement, are referred to
herein as the "Registration Statement" and the "Prospectus," respectively.
II.
Your obligations hereunder are subject to the following conditions,
each of which shall be met on such date as you and the Company shall
subsequently fix for the commencement of your obligations hereunder (the
"Commencement Date"):
(a)(i) No litigation or proceeding shall be threatened or pending to
restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes and (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission and there shall have been no material adverse change not in the
ordinary course of business in the consolidated financial condition of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus; and you shall have received on the
Commencement Date a certificate dated such Commencement Date and signed by an
executive officer of the Company to the foregoing effect. The officer making
such certificate may rely upon the best of his knowledge as to proceedings
threatened.
(b) You shall have received a favorable opinion of the Assistant
General Counsel of, or counsel to the Company, dated such Commencement Date, to
the effect set forth in Exhibit A.
(c) You shall have received on the Commencement Date a letter dated the
Commencement Date from Deloitte & Touche LLP, independent auditors, containing
statements and information of the type ordinarily included in auditors' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus relating to the Notes.
(d) You shall have received a favorable opinion of ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Agents, dated such Commencement Date, to the effect
set forth in Exhibit B.
The obligations of the Purchasing Agent to purchase Notes as principal,
both under this Agreement and under any Terms Agreement (as defined in Section V
hereof) are subject to the conditions that (i) no litigation or proceeding shall
be threatened or pending to restrain or enjoin the issuance or delivery of the
Notes, or which in any way questions or affects the validity of the Notes, (ii)
no stop order suspending the effectiveness of the Registration Statement shall
be in effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission and (iii) there shall have been no material adverse
change not in the ordinary course of business in the consolidated financial
condition of the Company and its subsidiaries, taken as a whole, from that set
forth in the Registration Statement and the Prospectus, each of which conditions
shall be met on the corresponding Settlement Date. Further, only if specifically
called for by any written agreement by the Purchasing Agent to purchase Notes as
principal, the Purchasing Agent's obligations hereunder
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and under such agreement, shall be subject to such of the additional conditions
set forth in clauses (a), as it relates to the executive officer's certificate,
and clauses (b), (c) and (d) above, as agreed to by the parties, each of which
such agreed conditions shall be met on the corresponding Settlement Date.
III.
In further consideration of your agreements herein contained, the
Company covenants as follows:
(a) To furnish to you, without charge, a copy of (i) the Indenture,
(ii) the resolutions of the Board of Directors (or Executive Committee) of the
Company authorizing the issuance and sale of the Notes, certified by the
Secretary or Assistant Secretary of the Company as having been duly adopted,
(iii) the Registration Statement including exhibits and materials incorporated
by reference therein and (iv) as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus (other than amendments or supplements to change interest rates), to
furnish you a copy of each such proposed amendment or supplement.
(c) To furnish you copies of each amendment to the Registration
Statement and of each amendment and supplement to the Prospectus in such
quantities as you may from time to time reasonably request; and if at any time
when the delivery of a Prospectus shall be required by law in connection with
sales of any of the Notes, either (i) any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact, or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading or (ii) for any other reason it shall be
necessary to amend or supplement the latest Prospectus, as then amended or
supplemented, or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or the
Exchange Act, the Company will (A) notify you to suspend the solicitation of
offers to purchase Notes and if notified by the Company, you shall forthwith
suspend such solicitation and cease using the Prospectus as then amended or
supplemented and (B) promptly prepare and file with the Commission such document
incorporated by reference in the Prospectus or an amendment or supplement to the
Registration Statement or the Prospectus which will correct such statement or
omission or effect such compliance and will provide to you without charge a
reasonable number of copies thereof, which you shall use thereafter.
(d) To endeavor to qualify such Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all reasonable expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with the
determination of the eligibility of such Notes for investment under the laws of
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such jurisdictions as you may designate, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation to do
business, or to file a general consent to service of process, in any
jurisdiction.
(e) The Company will make generally available to its security holders
and to you as soon as practicable earning statements that satisfy the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Securities Act) of the
Registration Statement with respect to each sale of Notes. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(f) To use its reasonable efforts, in cooperation with the Purchasing
Agent, to cause such Notes as the Company and the Purchasing Agent agree to be
accepted for listing on any stock exchange (each, a "Stock Exchange"), in each
case as the Company and the Purchasing Agent shall deem to be appropriate. In
connection with any such agreement to qualify Notes for listing on a Stock
Exchange, the Company shall use its reasonable efforts to obtain such listing
promptly and shall furnish any and all documents, instruments, information and
undertakings that may be necessary or advisable in order to obtain and maintain
the listing.
IV.
(a) You propose to solicit purchases of the Notes upon the terms and
conditions set forth herein and in the Prospectus and upon the terms
communicated to you from time to time by the Company. For the purpose of such
solicitation you will use the Prospectus as then amended or supplemented which
has been most recently distributed to you by the Company, and you will solicit
purchases only as permitted or contemplated thereby and herein and will solicit
purchases of the Notes only as permitted by the Securities Act and the
applicable securities laws or regulations of any jurisdiction. The Company
reserves the right, in its sole discretion, to suspend solicitation of purchases
of the Notes commencing at any time for any period of time or permanently. Upon
receipt of instructions (which may be given orally) from the Company, you will
forthwith suspend solicitation of purchases until such time as the Company has
advised you that such solicitation may be resumed.
You are authorized to solicit orders for the Notes only in
denominations of $1,000 or more (in multiples of $1,000). You are not authorized
to appoint subagents or to engage the service of any other broker or dealer in
connection with the offer or sale of the Notes without the consent of the
Company. Unless authorized by the Purchasing Agent in each instance, each Agent
agrees not to purchase and sell Notes for which an order from a client has not
been received. In addition, unless otherwise instructed by the Company, the
Purchasing Agent shall communicate to the Company, orally or in writing, each
offer to purchase Notes. The Company shall have the sole right
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to accept offers to purchase Notes offered through you and may reject any
proposed purchase of Notes as a whole or in part. You shall have the right, in
your discretion reasonably exercised, to reject any proposed purchase of Notes,
as a whole or in part, and any such rejection shall not be deemed a breach of
your agreements contained herein. Unless otherwise agreed between the Company
and the Purchasing Agent, the Company agrees to pay the Purchasing Agent, as
consideration for soliciting the sale of the Notes pursuant to a Terms
Agreement, a concession in the form of a discount equal to the percentages of
the initial offering price of each Note sold as set forth in Exhibit C hereto
(the "Concession"); provided, however, that the Concession shall not exceed the
amounts set forth in the Prospectus. The Purchasing Agent and the other Agents
will share the above-mentioned Concession in such proportions as they and the
Company may agree.
Unless otherwise authorized by the Company, all Notes shall be sold to
the public at a purchase price not to exceed 100% of the principal amount
thereof, plus accrued interest, if any. We may also issue Notes that bear a zero
interest rate and are issued at a substantial discount from the principal amount
payable at the Maturity Date (a "Zero-Coupon Note"). Such Zero-Coupon Notes
shall be sold to the public at a purchase price no greater than an amount,
expressed as a percentage of the principal face amount of such Notes, equal to
the net proceeds to the Company on the sale of such Notes, plus the Concession,
plus accrued interest, if any. The actual purchase price paid by investors for
any Note shall be determined by prevailing market prices at the time of
purchase. Such purchase price shall be set forth in the confirmation statement
of the Selling Group member responsible for such sale, and delivered to the
purchaser along with a copy of the Prospectus (if not previously delivered) and
Pricing Supplement.
(b) Procedural details relating to the issue and delivery of, and the
solicitation of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit D (the "Procedures"), as
amended from time to time. The provisions of the Procedures shall apply to all
transactions contemplated hereunder other than those made pursuant to a Terms
Agreement. You and the Company each agree to perform the respective duties and
obligations specifically provided to be performed by each in the Procedures as
amended from time to time. The Procedures may only be amended by written
agreement of the Company and you.
(c) You are aware that other than registering the Notes under the
Securities Act, no action has been or will be taken by the Company that would
permit the offer or sale of the Notes or possession or distribution of the
Prospectus or any other offering material relating to the Notes in any
jurisdiction where action for that purpose is required. Accordingly, you agree
that you will observe all applicable laws and regulations in each jurisdiction
in or from which you may directly or indirectly acquire, offer, sell or deliver
Notes or have in your possession or distribute the Prospectus or any other
offering material relating to the Notes and you will obtain any consent,
approval or permission required by you for the purchase, offer or sale by you of
Notes under the laws and regulations in force in any such jurisdiction to which
you are subject or in which you make such purchase, offer or sale. Neither the
Company nor any other Agent shall have any responsibility for determining what
compliance is necessary by you or for your obtaining such consents, approvals or
permissions. You further agree that you will take no action that will impose
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any obligations on the Company or the other Agents. Subject as provided above,
you shall, unless prohibited by applicable law, furnish to each person to whom
you offer, sell or deliver Notes a copy of the Prospectus (as then amended or
supplemented) or (unless delivery of the Prospectus is required by applicable
law) inform each such person that a copy thereof (as then amended or
supplemented) will be made available upon request. You are not authorized to
give any information or to make any representation not contained in the
Prospectus or the documents incorporated by reference or specifically referred
to therein in connection with the offer and sale of the Notes.
(d) GMAC shall be responsible for the contents of its web site
▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇.
V.
Each sale of Notes shall be made in accordance with the terms of this
Agreement and a separate agreement to be entered into which will provide for the
sale of such Notes to, and the purchase and reoffering thereof, by the
Purchasing Agent as principal. Each such separate agreement (which may be an
oral agreement and confirmed in writing as described below between the
Purchasing Agent and the Company) is herein referred to as a "Terms Agreement".
A Terms Agreement may also specify certain provisions relating to the reoffering
of such Notes by the Purchasing Agent. The Purchasing Agent's agreement to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations, warranties and agreements of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement, whether oral (and confirmed in writing which may be
by facsimile transmission) or in writing, shall describe the Notes to be
purchased pursuant thereto by the Purchasing Agent as principal, and may
specify, among other things, the principal amount of Notes to be purchased, the
interest rate or formula and maturity date or dates of such Notes, the interest
payment dates, if any, the price to be paid to the Company for such Notes, the
initial public offering price at which the Notes are proposed to be reoffered,
and the time and place of delivery of and payment for such Notes (the
"Settlement Date"), whether the Notes provide for a Survivor's Option or for
optional redemption by the Company and on what terms and conditions, and any
other relevant terms. In connection with the resale of the Notes purchased,
without the consent of the Company you are not authorized to appoint subagents
or to engage the service of any other broker or dealer, nor may you reallow any
portion of the discount paid to you by the Company;provided, however, you may
offer Notes you have purchased as principal to any NASD dealer in good standing
at a discount and unless otherwise specified in the applicable pricing
supplement, such discount allowed to any dealer shall not, during the
distribution of the Notes, be in excess of the discount to be received by you
from the Purchasing Agent. Terms Agreements, each of which shall be
substantially in the form of Exhibit E hereto, or as otherwise agreed to between
the Company and the Purchasing Agent, may take the form of an exchange of any
standard form of written telecommunication between the Purchasing Agent and the
Company.
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VI.
The Company represents and warrants to the Agents that as of each date
on which the Company accepts an offer to purchase Notes (including any purchase
by the Purchasing Agent as principal, pursuant to a Terms Agreement or
otherwise), as of each date the Company issues and sells Notes and as of each
date the Registration Statement or the Prospectus is amended or supplemented:
(i) each document, if any, filed, or to be filed, pursuant to the Exchange Act
and incorporated by reference in the Prospectus complied when so filed, or will
comply, in all material respects with such Act and the rules and regulations
thereunder; (ii) the Registration Statement (including the documents
incorporated by reference therein), filed with the Commission pursuant to the
Securities Act relating to the Notes, when it became effective, did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (iii) each Prospectus, if any, filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with such Act
and the applicable rules and regulations thereunder; (iv) the Registration
Statement and each Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations thereunder; and (v) the Registration Statement
and each Prospectus relating to the Notes do not and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; (vi) that (a) no litigation or proceeding shall be threatened or
pending to restrain or enjoin the issuance or delivery of the Notes, or which in
any way questions or affects the validity of the Notes and (b) no stop order
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceedings for such purpose shall be pending before or threatened by the
Commission and there shall have been no material adverse change not in the
ordinary course of business in the consolidated financial condition of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus, each of which conditions shall be met
on the corresponding Settlement Date; (vii) no authorization, consent or
approval of, or registration or filing with, any governmental or public body or
regulatory authority in the United States is required on the part of the Company
for the issuance of the Notes in accordance with the Indenture or the sale of
the Notes in accordance with this Agreement other than the registration of the
Notes under the Securities Act, qualification of the Indenture under the Trust
Indenture Act and compliance with the securities or Blue Sky laws of various
jurisdictions; and (viii) the execution and delivery of the Indenture, the
issuance of the Notes in accordance with the Indenture and the sale of the Notes
pursuant to this Agreement do not and will not contravene any provision of
applicable law or result in any violation by the Company of any of the terms or
provisions of the Certificate of Incorporation or By-Laws of the Company, or any
indenture, mortgage or other agreement or instrument by which the Company is
bound. The above representations and warranties shall not apply to any
statements or omissions made in the Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by you expressly
for use therein. Each acceptance by the Company of an offer for the purchase of
Notes and each issuance of Notes shall be deemed an affirmation by the Company
that the foregoing representations and warranties are true and correct at the
time, as the case may be, of such acceptance or of such issuance, in each case
as though expressly made at such time. The
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representations, warranties and covenants of the Company shall survive the
execution and delivery of this Agreement and the issuance and sale of the Notes.
Each time the Registration Statement shall be amended by the filing of
a post-effective amendment with the Commission, or the filing by the Company of
a Form 10-K or Form 10-Q pursuant to Section 13 of the Exchange Act, or, if so
agreed in connection with a particular transaction, the Company shall furnish
the Agents with (1) a written opinion, dated the date of such amendment, filing
, or as otherwise agreed, of counsel to the Company, in substantially the form
previously delivered under Section II(b), but modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended or supplemented at
such date; (2) a letter, dated the date of such amendment, filing, or as
otherwise agreed, of Deloitte & Touche LLP, independent auditors, in
substantially the form previously delivered under Section II(c), but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended or supplemented at such date; and (3) a certificate, dated the date of
such amendment, filing, or as otherwise agreed and signed by an executive
officer of the Company, in substantially the form previously delivered under
Section II(a), but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented at such date.
VII.
The Company agrees to indemnify and hold harmless you, each person, if
any, who controls (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) you and each of your and such person's
officers and directors against any and all losses, liabilities, costs or claims
(or actions in respect thereof) to which any of them may become subject
(including all reasonable costs of investigating, disputing or defending any
such claim or action), insofar as such losses, liabilities, costs or claims (or
actions in respect thereof) arise out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any Prospectus, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading provided: (i) that the Company shall not be liable for any such loss,
liability, cost, action or claim arising from any statements or omissions made
in reliance on and in conformity with written information provided by you to the
Company expressly for use in the Registration Statement or Prospectus or any
amendment or supplement thereto; and (ii) that the Company shall not be liable
to you or any person controlling you with respect to the Prospectus to the
extent any such loss, liability, cost, action or claim to you or such
controlling person results from the fact that you sold Notes to a person to whom
there was not sent or given, at or prior to the earlier of either the mailing or
delivery of the written confirmation of such sale or the delivery of such Notes
to such person, a copy of the Prospectus as then amended or supplemented, if the
Company has previously furnished copies thereof to you; provided that the
foregoing indemnity with respect to any Prospectus shall not inure to the
benefit of any Agent from whom the person asserting any such losses, claims,
damages or liabilities purchased Notes, or any person controlling such Agent, if
a copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), was not sent or given by
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or on behalf of such Agent to such person, if required by law so to have
delivered, at or prior to the written confirmation of the sale of the Notes to
such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities
unless such failure is the result of noncompliance by the Company with its
obligations under Article III(c) hereof.
Each Agent (including the Purchasing Agent) severally agrees to
indemnify and hold harmless the Company, each person, if any, who controls
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act), the Company, and the Company's and such person's officers and
directors from and against any and all losses, liabilities, costs or claims (or
actions in respect thereof) to which any of them may become subject (including
all reasonable costs of investigating, disputing or defending any such claim or
action), insofar as such losses, liabilities, costs or claims (or actions in
respect thereof) arise out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus, or any amendment or supplement thereto, or any omission
or alleged omission to state therein a material fact necessary to make the
statements therein not misleading, in each case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the section of the Prospectus entitled "Plan of Distribution" or any
amendment or supplement thereto in reliance on and in conformity with written
information furnished to the Company by you expressly for use therein.
Each Agent (including the Purchasing Agent) severally agrees to
indemnify and hold harmless the Company, the Purchasing Agent, each director and
officer of the Company or of the Purchasing Agent, and each person, if any, who
controls (within the meaning of Section 15 of the Securities Act) the Company
against any and all losses, claims, damages, liabilities, expenses, actions and
demands to which they or any of them may become subject (including all
reasonable costs of investigating, disputing or defending any such claim, action
or demand) under the law of any jurisdiction or which may be made against them
arising out of, or in connection with the breach of such Agent (including the
Purchasing Agent) of any of the terms, conditions, agreements and
representations of Section IV of the Agreement.
If any claim, demand, action or proceeding (including any governmental
investigation) shall be brought or alleged against an indemnified party in
respect of which indemnity is to be sought against an indemnifying party
pursuant to the preceding paragraphs, the indemnified party shall promptly
notify the indemnifying party in writing, and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnified party may designate in such proceeding and shall pay the reasonable
fees and expenses of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the indemnifying party has failed within a reasonable time to retain
counsel reasonably satisfactory to such indemnified party or (iii) the named
parties to any such proceeding (including
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any impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
agreed that the indemnifying party shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate law firm (in addition to local
counsel where necessary) for all such indemnified parties. Such firm shall be
designated in writing by the indemnified party. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is entitled to indemnification
hereunder, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
The indemnity agreements contained in this Section VII and the
representations and warranties of the Company and you in this Agreement, shall
remain operative and in full force and effect regardless of: (i) any termination
of this Agreement; (ii) any investigation made by an indemnified party or on
such party's behalf or any person controlling an indemnified party or by or on
behalf of the indemnifying party, its directors or officers or any person
controlling the indemnifying party; and (iii) acceptance of and payment for any
of the Notes.
VIII.
Except as provided in Section V hereof, in soliciting purchases of
Notes from the Company, you are acting solely as agent for the Company, and not
as principal. You will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
accepted by the Company, but you shall not have any liability to the Company in
the event such purchase is not consummated for any reason, other than to repay
to the Company any commission with respect thereto. Except pursuant to a Terms
Agreement, under no circumstances shall you be obligated to purchase any Notes
for your own account.
IX.
This Agreement shall be terminated at any time by either party hereto
upon the giving of five business days written notice of such termination to the
other party hereto. In the event of any such termination, neither party shall
have any liability to the other party hereto, except for obligations hereunder
which expressly survive the termination of this Agreement and except that, if at
the time of termination an offer for the purchase of Notes shall have been
accepted by the Company but the time of delivery to the purchaser or his agent
of the Note or Notes relating thereto shall not yet have occurred, the Company
shall have the obligations provided herein with respect to such Note or Notes.
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Unless specifically set forth in a Terms Agreement, a Terms Agreement
shall not be subject to termination. The termination of this Agreement shall not
require termination of any agreement by the Purchasing Agent to purchase Notes
as principal, and the termination of any Terms Agreement shall not require
termination of this Agreement.
If this Agreement is terminated, the last sentence of the second
paragraph of Section IV(a), Section III(c), (d) and (e), Section VII, and the
first paragraph of Section XIV shall survive; provided that if at the time of
termination of this Agreement an offer to purchase Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such Notes
has not occurred, the provisions of Section III(a) and (b), Section IV(b) and
Section V shall also survive until time of delivery.
X.
Except as otherwise specifically provided herein, all statements,
requests, notices and advices hereunder shall be in writing, or by telephone if
promptly confirmed in writing, and if to you shall be sufficient in all respects
if delivered in person or sent by telex, facsimile transmission (confirmed in
writing), or registered mail to you at your address, telex or telecopier number
set forth below by your signature and if to the Company shall be sufficient in
all respects if delivered or sent by telecopier or registered mail to the
Company at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopier number
▇▇▇-▇▇▇-▇▇▇▇, marked for the attention of the Secretary. All such notices shall
be effective on receipt.
XI.
This Agreement shall be binding upon you and the Company, and inure
solely to the benefit of you and the Company and any other person expressly
entitled to indemnification hereunder and the respective personal
representatives, successors and assigns of each, and no other person shall
acquire or have any rights under or by virtue of this Agreement.
XII.
This Agreement shall be governed by and construed in accordance with
the substantive laws of the State of New York. Each party to this Agreement
irrevocably agrees that any legal action or proceeding against it arising out of
or in connection with this Agreement or for recognition or enforcement of any
judgment rendered against it in connection with this Agreement may be brought in
any Federal or New York State court sitting in the Borough of Manhattan, and, by
execution and delivery of this Agreement, such party hereby irrevocably accepts
and submits to the jurisdiction of each of the aforesaid courts in personam,
generally and unconditionally with respect to any such action or proceeding for
itself and in respect of its property, assets and revenues. Each party hereby
also irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any such action or
proceeding brought in any such court and any claim that any such action or
proceeding has been brought in an inconvenient forum.
-11-
XIII.
If this Agreement is executed by or on behalf of any party, such person
hereby states that at the time of the execution of this Agreement he has no
notice of revocation of the power of attorney by which he has executed this
Agreement as such attorney.
XIV.
The Company will pay the expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing of
the Registration Statement; (ii) the preparation, issuance and delivery of the
Notes; (iii) the fees and disbursements of the Company's auditors, of the
Trustee and its counsel and of any paying or other agents appointed by the
Company; (iv) the printing and delivery to you in quantities as hereinabove
stated of copies of the Registration Statement and the Prospectus; (v) the
reasonable fees and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Agents (including "Blue Sky" fees and disbursements; (vi) if the Company lists
Notes on a securities exchange, the costs and fees of such listing; and (vii)
any fees charged by rating agencies for the rating of the Notes.
This Agreement may be executed by each of the parties hereto in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Company and you.
Very truly yours,
GENERAL MOTORS ACCEPTANCE CORPORATION
By:___________________________________
Title:________________________________
Confirmed and accepted
as of the date first above
written:
-12-
EXHIBIT A
Opinion of Company Counsel
September 30, 2003
ABN AMRO Financial Services, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ & Co., L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fidelity Capital Markets, a division of
National Financial Services LLC
World Trade Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-13-
UBS Financial Services
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Wachovia Securities LLC
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
I am issuing this letter in my capacity as Assistant General Counsel
for General Motors Acceptance Corporation (the "Corporation") in response to the
requirements of the Selling Agent Agreement dated September 30, 2003 (the
"Selling Agent Agreement") by and among the Corporation and ABN AMRO Financial
Services, Inc., ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc., Citigroup
Global Markets Inc., ▇▇▇▇▇▇ ▇▇▇▇▇ & Co., L.P. Fidelity Capital Markets, a
division of National Financial Services LLC, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated, UBS Financial Services
and Wachovia Securities LLC (the "Agents"), named in the Selling Agent
Agreement. The Selling Agent Agreement relates to the offering (the "Offering")
of SmartNotes of the Corporation (the "Offered Securities"). Every term which is
defined or given a special meaning in the Selling Agent Agreement and which is
not given a different meaning in this letter has the same meaning whenever it is
used in this letter as the meaning it is given in the Selling Agent Agreement.
In connection with the preparation of this letter, I have among other
things read:
(a) the Registration Statement on Form S-3 (Registration No. 333-)
filed by the Corporation with the Securities and Exchange
Commission (the "Commission") for the purpose of registering
the Offering under the Securities Act of 1933, as amended (the
"Securities Act") (which registration statement, as amended
and including the information incorporated therein by
reference, and as constituted at the time it became effective,
is herein called the "Registration Statement");
(b) the Prospectus of the Corporation dated September ___, 2003
(which Prospectus, including the information incorporated
therein by reference, is herein called the "Prospectus");
(c) the Indenture, dated as of September 24, 1996 (the
"Indenture"), by and between the Corporation and JPMorgan
Chase Bank as trustee (the "Trustee"), and the First
Supplemental Indenture thereto, dated January 1, 1998 (the
"First Supplemental Indenture");
(d) an executed copy of the Selling Agent Agreement;
-14-
(e) specimens of the Offered Securities;
(f) the corporate proceedings of the Corporation relating to the
execution and delivery of the Indenture, the Selling Agent
Agreement and the Offered Securities;
(g) a copy of the Certificate of Incorporation of the Corporation,
as amended, certified as of a recent date by the Secretary of
State of Delaware;
(h) a copy of the By-Laws of the Corporation; and
(i) copies of all certificates and other documents delivered today
in connection with the consummation of the Offering.
In addition, I have examined and relied on the originals or copies
certified or otherwise identified to my satisfaction of all such corporate
records of the Corporation and such other instruments and certificates of public
officials, officers and representatives of the Corporation and such other
persons, and I have made such investigations of law as I have deemed appropriate
as a basis for the opinions expressed below. I have assumed that there has been
no relevant change or development between the dates as of which the information
cited in the preceding sentence was given and the date of this letter and that
the information upon which I have relied is accurate and does not omit
disclosures necessary to prevent such information from being misleading.
Subject to the assumptions, qualifications and limitations which are
identified in this letter, I advise you that:
(i) the Corporation is validly existing as a corporation and
in good standing and duly incorporated under the laws of the State of
Delaware and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification, except where
the failure to be so qualified or be in good standing, individually or
in the aggregate, would not have a material adverse effect on the
Corporation and its subsidiaries taken as a whole;
(ii) the Indenture has been duly authorized, executed and
delivered by the Corporation, is a valid and binding agreement of the
Corporation, enforceable against the Corporation, and has been duly
qualified under the Trust Indenture Act of 1939, as amended (the
"TIA");
(iii) the Offered Securities, when executed and authenticated
in accordance with the provisions of the Indenture and delivered to and
paid for by the Agents as contemplated by the Selling Agent Agreement,
will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Corporation, enforceable
-15-
against the Corporation, assuming the due authorization, execution and
delivery by the Trustee of the Indenture and the due authentication and
delivery of the Offered Securities by the Trustee in accordance with
the Indenture;
(iv) the Selling Agent Agreement has been duly authorized,
executed and delivered by the Corporation, is a valid and binding
agreement of the Corporation and enforceable against the Corporation;
(v) no authorization, consent or approval of, or registration
or filing with, any governmental or public body or regulatory authority
is required on the part of the Corporation for the issuance of the
Offered Securities in accordance with the Indenture or the sale of the
Offered Securities in accordance with the Selling Agent Agreement,
other than the registration of the Offered Securities under the
Securities Act, qualification of the Indenture under the TIA, the
listing of the Offered Securities and compliance with any laws of any
foreign jurisdiction or the state securities or "blue sky" laws of
various jurisdictions;
(vi) the issuance of the Offered Securities in accordance with
the Indenture and the sale of the Offered Securities pursuant to the
Selling Agent Agreement, do not and will not contravene any provision
of applicable law (except I express no opinion in this paragraph as to
compliance with any disclosure requirement or any prohibition against
fraud or misrepresentation or as to whether performance of any
indemnification or contribution provisions would be permitted) or
result in any violation by the Corporation of any of the terms or
provisions of the certificate of incorporation or by-laws of the
Corporation or of any material indenture, mortgage or other agreement
or instrument known to me, by which the Corporation is bound (except
that I express no opinion as to compliance with any financial tests or
cross-default provision in any such agreement);
(vii) the statements in the Prospectus under "Description of
Notes" insofar as such statements constitute summaries of the documents
or proceedings referred to therein, fairly present in all material
respects the information called for with respect to such documents and
proceedings; and
(viii) each document filed pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (except as to financial
statements contained therein, as to which I do not express any opinion)
and incorporated by reference in the Prospectus complied when so filed,
or at the time of any amendment, as to form in all material respects
with the Exchange Act and the rules and regulations thereunder.
With respect to paragraph (viii) above, my opinion is based upon the
participation by one or more attorneys, who are members of the General Motors
Acceptance Corporation Legal Staff with whom I have worked, in the preparation
of the Registration Statement and the Prospectus and review and discussion of
the contents thereof and upon my general review and discussion of
-16-
the answers made and information furnished therein with such attorneys, certain
officers of the Corporation and its auditors, but is without independent check
or verification except as stated herein.
***********
Except as set forth in paragraph (vii) above, I make no representation
that I have independently verified the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus or that the
actions taken in connection with the preparation of the Registration Statement
or the Prospectus were sufficient to cause the Prospectus or Registration
Statement to be accurate, complete or fair (including the actions described in
the next paragraph).
I have participated in the preparation of the Registration Statement
and the Prospectus. During the course of such preparation, I have examined
various documents, including those listed at the beginning of this letter, and
have participated in various conferences with representatives of and other
counsel of the Corporation, and with representatives of the independent
accountants for the Corporation and representatives of and counsel to the
Agents, at which conferences the contents of the Registration Statement and the
Prospectus (and the documents incorporated therein by reference) were reviewed
and discussed.
Based on my participation in the conferences and discussions identified
above, my understanding of applicable law and the experience that I have gained
in the practice thereunder, and relying as to factual matters to the extent
deemed appropriate by me upon the representations and statements of officers and
other representatives of the Corporation, I advise you that no fact came to my
attention to cause me to conclude that (i) the Registration Statement, on its
effective date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Prospectus, as of its date, or as of
the date of this letter, contained or contains an untrue statement of a material
fact or omitted or omits 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 or (iii) as of the effective date of the Registration Statement,
either the Registration Statement or the Prospectus appeared on its face not to
be responsive in all material respects to the requirements of Form S-3, except
for, in each case, financial statements and schedules and other financial and
statistical and similar data and information included therein or incorporated by
reference therein or omitted therefrom, as to which I express no opinion.
************
I have assumed for purposes of this letter the following: each document
I have reviewed for purposes of this letter is accurate and complete, each such
document that is an original is authentic, each such document that is a copy
conforms to an authentic original and all signatures on each such document are
genuine (except that I make no such assumption in respect to the
-17-
Selling Agent Agreement); that the Selling Agent Agreement and every other
agreement I have examined for purposes of this letter constitutes a valid and
binding obligation of each party to that document and that each such party has
satisfied all legal requirements that are applicable to such party to the extent
necessary to entitle such party to enforce such agreement (except that I make no
such assumption with respect to the Corporation); and that you have acted in
good faith and without notice of any fact which has caused you to reach any
conclusion contrary to any of the conclusions provided in this letter.
In preparing this letter I have relied without independent verification
upon the following: (i) information contained in certificates obtained from
governmental authorities; (ii) factual information represented to be true in the
Selling Agent Agreement and other documents specifically identified at the
beginning of this letter as having been read by me; (iii) factual information
provided to me by the other representatives of the Corporation; and (iv) factual
information I have obtained from such other sources as I have deemed reasonable.
I have assumed that the information upon which I have relied is accurate and
does not omit disclosures necessary to prevent such information from being
misleading. For purposes of numbered paragraph (i), I have relied exclusively
upon a certificate issued by a governmental authority in the relevant
jurisdiction and such opinion is not intended to provide any conclusion or
assurance beyond that conveyed by such certificate. I have not undertaken any
investigation or search of court records for purposes of this letter.
I confirm that I do not have knowledge that has caused me to conclude
that my reliance and assumptions cited in the two immediately preceding
paragraphs are unwarranted. Whenever this letter provides advice about (or based
upon) my knowledge of any particular information or about any information which
has or has not come to my attention such advice is based entirely on my
conscious awareness at the time this letter is delivered on the date it bears.
My advice on every legal issue addressed in this letter is based
exclusively on the General Corporation Law of the State of Delaware or the
federal law of the United States. I express no opinion with respect to any state
securities or "blue sky" laws or regulations, any foreign laws, statutes,
governmental rules or regulations or any laws, statutes governmental rules or
regulations which in my experience are not applicable generally to transactions
of the kind covered by the Selling Agent Agreement. None of the opinions or
other advice contained in this letter considers or covers (i) any financial
statements or supporting schedules (or any notes to any such statements or
schedules) or other financial or statistical information set forth or
incorporated by reference in (or omitted from) the Registration Statement or the
Prospectus or (ii) any rules and regulations of the National Association of
Securities Dealers, Inc. relating to the compensation of underwriters.
My advice on each legal issue addressed in this letter represents my
opinion as to how that issue would be resolved were it to be considered by the
highest court of the jurisdiction upon whose law my opinion on that issue is
based. The manner in which any particular issue would be treated in any actual
court case would depend in part on facts and circumstances particular to the
-18-
case, and this letter is not intended to guarantee the outcome of any legal
dispute which may arise in the future.
My opinion in paragraphs (ii), (iii) and (iv) are subject to the
reservations and qualifications that enforcement may be limited or affected by
bankruptcy, insolvency, reorganization, arrangement, moratorium, or other
similar laws relating to or affecting the rights of creditors generally, and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law, and that rights to indemnity
under the Selling Agent Agreement may be limited under applicable U.S. Federal
or state law.
This letter speaks as of the time of its delivery on the date it bears.
I do not assume any obligation to provide you with any subsequent opinion or
advice by reason of any fact about which I did not have knowledge at that time,
by reason of any change subsequent to that time in any law other governmental
requirement or interpretation thereof covered by any of my opinions or advice,
or for any other reason.
This letter may be relied upon by the Agents only for the purpose
served by the provision in the Selling Agent Agreement cited in the initial
paragraph of this letter in response to which it has been delivered. Without my
written consent: (i) no person other than the Agents may rely on this letter for
any purpose; (ii) this letter may not be cited or quoted in any financial
statement, prospectus, private placement memorandum or other similar document;
(iii) this letter may not be cited or quoted in any other document or
communication which might encourage reliance upon this letter by any person or
for any purpose excluded by the restrictions in this paragraph; and (iv) copies
of this letter may not be furnished to anyone for purposes of encouraging such
reliance.
Very truly yours,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant General Counsel
-19-
EXHIBIT B
Opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
September 30, 2003
ABN AMRO Financial Services, Inc.
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. Inc.
Citigroup Global Markets Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
Fidelity Capital Markets, a division of National Financial Services LLC
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
UBS Financial Services
Wachovia Securities LLC
c/o ABN AMRO Financial Services, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
We have acted as counsel for you, the sales agents (the "Agents") named
in the Selling Agent Agreement dated September 30, 2003 (the "Selling Agent
Agreement") between each of you and General Motors Acceptance Corporation, a
Delaware corporation (the "Company"), under which you have agreed to act as
agents for the Company to solicit purchasers for, or to purchase from the
Company as principal, up to $15,000,000,000 aggregate initial public offering
price of the Company's SmartNotes Due from Nine Months to Thirty Years from Date
of Issue (the "Notes"). The Notes will be issued pursuant to the provisions of
an indenture dated as of September 24, 1996, as amended by a First Supplemental
Indenture dated as of January 1, 1998 (together, the "Indenture"), between the
Company and JPMorgan Chase Bank, as Trustee (the "Trustee").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary or advisable
for the purpose of rendering this opinion, including those relating to the
authorization, execution and delivery by the Company of the Indenture and the
Selling Agent Agreement, and the authorization of the Notes by the Company.
We have participated in the preparation of the Company's registration
statement on Form S-3 (Registration No. 333-XXX) (other than the documents
incorporated by reference in the
-20-
prospectus included therein (the "Incorporated Documents")) filed with the
Securities and Exchange Commission (the "Commission") pursuant to the provisions
of the Securities Act of 1933, as amended (the "Act"), registering the Notes.
Although we did not participate in the preparation of the Incorporated
Documents, we have reviewed such documents. In addition, we understand that the
registration statement was declared effective under the Act and that the
Indenture was qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). The registration statement (including the Incorporated
Documents), in the form in which it was declared effective is hereinafter
referred to as the "Registration Statement", and the related prospectus
(including the Incorporated Documents) dated September __, 2003 is hereinafter
referred to as the "Prospectus".
Based upon the foregoing, we are of the opinion that:
1. The Indenture has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium and other
similar laws affecting the rights and remedies of creditors generally and of
general principles of equity, whether applied by a court of law or equity, and
has been duly qualified under the Trust Indenture Act.
2. The issuance and sale of the Notes has been duly authorized and the
Notes, when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the purchasers thereof, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting the
rights and remedies of creditors generally and of general principles of equity,
whether applied by a court of law or equity.
3. The Selling Agent Agreement has been duly authorized, executed and
delivered by the Company.
We have considered the statements relating to legal documents included
in the Prospectus under the captions "Description of Notes" and "Plan of
Distribution." In our opinion, such statements fairly summarize in all material
respects such documents.
We have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to other matters in
the Registration Statement or the Prospectus, but we have generally reviewed and
discussed with your representatives and with certain officers and employees of,
and counsel and independent public accountants for, the Company the information
furnished, whether or not subject to our check and verification. On the basis of
such consideration, review and discussion, but without independent check or
verification (A) we are of the opinion that the Registration Statement and
Prospectus (except for financial statements and other financial data included
therein as to which we are not called upon to express
-21-
any opinion and except for that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form T-1) of the
Trustee) comply as to form in all material respects with the Act and the
applicable rules and regulations of the Commission thereunder, (B) we have no
reason to believe that (except for financial statements and other financial data
as to which we are not called upon to express any belief and except for that
part of the Registration Statement that constitutes the Statement of Eligibility
and Qualification (Form T-1) of the Trustee) any part of the Registration
Statement, when such part became effective, contained, or as of the date hereof
contains, any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and (C) we have no reason to believe that (except as to
financial statements and other financial data as to which we are not called upon
to express any belief) the Prospectus as of the date hereof contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the opinion and belief set
forth in clauses (A) through (C) above do not cover information concerning an
offering of particular Notes to the extent such information will be set forth in
a supplement to the Prospectus.
For the purpose of this opinion in paragraph (2) above, we have, with
your approval, assumed that (i) the Notes will conform to the forms attached as
exhibits to the Indenture or as provided by the Indenture and will be completed
in accordance with the requirements of the Indenture and the Administrative
Procedures (as defined in the Selling Agent Agreement) and (b) none of the terms
of the Notes not contained in the forms examined by us will violate any
applicable law or be unenforceable.
In addition we wish to advise you that no opinion is expressed herein
concerning any change after the date hereof in applicable law or in the facts we
have relied upon in expressing this opinion.
We have examined the opinion dated the date hereof of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esquire, Assistant General Counsel of the Company, delivered to you
pursuant to Article II(b) of the Selling Agent Agreement, and we believe that
such opinion is responsive to the requirements of the Selling Agent Agreement.
We have also examined the letter dated September 25, 2003 of Deloitte &
Touche LLP, independent auditors, relating to the financial statements and other
information contained or incorporated by reference in the Registration Statement
and the other matters referred to in such letter, delivered to you pursuant to
Article II(c) of the Selling Agent Agreement. We participated in discussions
with your representatives and representatives of the Company relating to the
form of such letter, and we believe that is substantially in the form to which
all such parties agreed.
-22-
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon for any other purpose or relied upon
by or furnished to any other person without our prior written consent.
Very truly yours,
-23-
EXHIBIT C
SMARTNOTES(SM)
GMAC
DEALER AGENT PROGRAM
The following Concessions are payable as a percentage of the non-discounted
Price to Public of each Note sold through the Purchasing Agent.
9 months to less than 23 months ............................... 0.200%
23 months to less than 35 months .............................. 0.400%
35 months to less than 47 months .............................. 0.625%
47 months to less than 59 months .............................. 0.750%
59 months to less than 71 months .............................. 1.000%
71 months to less than 83 months .............................. 1.100%
83 months to less than 95 months .............................. 1.200%
95 months to less than 107 months ............................. 1.300%
107 months to less than 119 months ............................ 1.400%
119 months to less than 131 months ............................ 1.500%
131 months to less than 143 months ............................ 1.600%
143 months to less than 179 months ............................ 1.750%
179 months to less than 239 months ............................ 2.000%
239 months to 360 months ...................................... 2.500%
-24-
EXHIBIT D
GENERAL MOTORS ACCEPTANCE CORPORATION
$15,000,000,000
SMARTNOTES(SM)
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
SmartNotes(SM), Due from Nine Months to Thirty Years from Date of Issue are
offered on a continuing basis by General Motors Acceptance Corporation. The
Notes will be offered by ABN AMRO Financial Services, Inc. (the "Purchasing
Agent"), ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc., Citigroup Global
Markets Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P., Fidelity Capital Markets, a division
of National Financial Services LLC, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, UBS Financial Services and
Wachovia Securities LLC (collectively, the "Agents") pursuant to a Selling Agent
Agreement among the Company and the Agents dated as of the date hereof (the
"Selling Agreement") and one or more terms agreements substantially in the form
attached to the Selling Agreement as Exhibit E (each a "Terms Agreement"). The
Notes are being resold by the Purchasing Agent (and by any Agent that purchases
them from the Purchasing Agent) to (i) customers of the Agents or (ii) selected
broker-dealers (the "Selling Group") for distribution to their customers
pursuant to a Master Selected Dealer Agreement (a "Dealer Agreement") attached
hereto substantially in the representative form of Exhibit E. The Agents have
agreed to use their reasonable best efforts to solicit purchases of the Notes.
The Notes will be unsecured and unsubordinated debt and have been registered
with the Securities and Exchange Commission (the "Commission"). JPMorgan Chase
Bank is the trustee (the "Trustee") under an Indenture dated as of September 24,
1996, as amended from time to time, between the Company and the Trustee (the
"Indenture") covering the Notes. Pursuant to the terms of the Indenture,
JPMorgan Chase Bank also will serve as authenticating agent, issuing agent and
paying agent.
Each tranche of Notes will be issued in book-entry form ("Notes") and
represented by one or more fully registered global notes without coupons (each,
a "Global Note") held by the Trustee, as agent for the Depository Trust
Corporation ("DTC") and recorded in the book-entry system maintained by DTC.
Each Global Note will have the annual interest rate, maturity and other terms
set forth in the relevant Pricing Supplement (as defined in the Selling
Agreement). Owners of beneficial interests in a Global Note will be entitled to
physical delivery of Notes issued in certificated form equal in principal amount
to their respective beneficial interests only upon certain limited circumstances
described in the Indenture.
-25-
Administrative procedures and specific terms of the offering are explained
below. Administrative responsibilities will be handled for the Company by its
Borrowings Department; accountable document control and record-keeping
responsibilities will be performed by its Controller's Department. The Company
will advise the Agents and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agents and the Trustee are to
communicate regarding offers to purchase Notes and the details of their
delivery.
Notes will be issued in accordance with the administrative procedures set forth
in herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the Indenture, the Selling Agent
Agreements or the Prospectus and the Pricing Supplement (together, the
"Prospectus"), the relevant provisions of the Notes, the Indenture, the Selling
Agent Agreements and the Prospectus shall control. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Selling Agent Agreement, the Prospectus in the form most recently filed with the
Commission pursuant to Rule 424 of the Securities Act, or in the Indenture.
Administrative Procedures for Notes
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated September 24, 1996, and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated March 10, 1989,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). The procedures set forth below may be modified in
compliance with DTC's then-applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the "Maturity Date")
not less than nine months after the date of delivery
by the Company of such Note. Notes will mature on any
date selected by the initial purchaser and agreed to
by the Company. "Maturity" when used with respect to
any Note, means the date on which the outstanding
principal amount of such Note becomes due and payable
in full in accordance with its terms, whether at its
Maturity Date or by declaration of acceleration, call
for redemption, repayment or otherwise.
Issuance: All Fixed Rate Notes having the same terms
(collectively the "Fixed Rate Terms") will be
represented initially by a single Global Note.
-26-
All Floating Rate Notes which have the same terms
(collectively, the "Floating Rate Terms") will be
represented initially by a single Global Certificate
in fully registered form without coupons; all
Discount Notes which have the same terms
(collectively, the "Zero-Coupon Terms") will be
represented initially by a single Global Certificate
in fully registered form without coupons.
Each Global Note will be dated and issued as of the
date of its authentication by the Trustee. Each
Global Note will bear an Issue Date, which will be
(i) with respect to an original Global Note (or any
portion thereof), its original issuance date (which
will be the Settlement Date for the Notes represented
by such Global Note) and (ii) with respect to any
Global Note (or portion thereof) issued subsequently
upon exchange of a Global Note or in lieu of a
destroyed, lost or stolen Global Note, the most
recent Interest Payment Date to which interest has
been paid or duly provided for on the predecessor
Global Note or Notes (or if no such payment or
provision has been made, the original issuance date
of the predecessor Global Note or Notes), regardless
of the date of authentication of such subsequently
issued Global Note.
.
Identification
Numbers: The Company has received from the CUSIP Service
Bureau (the "CUSIP Service Bureau") of Standard &
Poor's Corporation ("Standard & Poor's") one series
of CUSIP numbers consisting of approximately 900
CUSIP numbers for future assignment to Global Notes.
The Company will provide DTC and the Trustee with a
list of such CUSIP numbers. The Company will assign
CUSIP numbers as described below under Settlement
Procedure "B". DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Company has assigned to Global Notes. The Company
will reserve additional CUSIP numbers when necessary
for assignment to Global Notes and will provide the
Trustee and DTC with the list of additional CUSIP
numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes will
be issued only in fully registered form without
coupons. Each Global Note will be registered in the
name of Cede & Co., as nominee for DTC, on the Note
Register maintained under the Indenture by the
Trustee. The beneficial owner of a Note (or one or
more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC
(with respect to such Note, the "Participants") to
act as agent or agents for such owner in connection
with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such beneficial owner of such
-27-
Note in the account of such Participants. The
ownership interest of such beneficial owner in such
Note will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in
DTC.
Transfers: Transfers of interests in a Global Note will be
accomplished by book entries made by DTC and, in
turn, by Participants (and in certain cases, one or
more indirect participants in DTC) acting on behalf
of beneficial transferors and transferees of such
interests.
Exchanges: The Trustee, at the Company's request, may deliver to
DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (a) the
CUSIP numbers of two or more Global Notes outstanding
on such date that represent Notes having the same
Fixed Rate Terms or Floating Rate Terms or
Zero-Coupon Terms, as the case may be, (except that
Issue Dates need not be the same) and for which
interest, if any, has been paid to the same date and
which otherwise constitute Notes of the same series
and tenor under the Indenture, (b) a date, occurring
at least 30 days after such written notice is
delivered and at least 30 days before the next
Interest Payment Date, if any, for the related Notes,
on which such Global Notes shall be exchanged for a
single replacement Global Note; and (c) a new CUSIP
number, obtained from the Company, to be assigned to
such replacement Global Note. Upon receipt of such a
notice, DTC will send to its participants (including
the Issuing Agent) and the Trustee a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver to
the CUSIP Service Bureau written notice setting forth
such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP
numbers of the Global Notes to be exchanged will no
longer be valid. On the specified exchange date, the
Trustee will exchange such Global Notes for a single
Global Note bearing the new CUSIP number and the
CUSIP numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Notes to
be exchanged exceed $500,000,000 in aggregate
principal or face amount, one replacement Global Note
will be authenticated and issued to represent each
$500,000,000 of principal or face amount of the
exchanged Global Notes and an additional Global Note
will be authenticated and issued to represent any
remaining principal amount of such Global Notes (See
"Denominations" below).
-28-
Denominations: Notes will be issued in denominations of $1,000 or
more (in multiples of $1,000). Global Notes will be
denominated in principal or face amounts not in
excess of $500,000,000. If one or more Notes having
an aggregate principal or face amount in excess of
$500,000,000 would, but for the preceding sentence,
be represented by a single Global Note, then one
Global Note will be issued to represent each
$500,000,000 principal or face amount of such Note or
Notes and an additional Global Note will be issued to
represent any remaining principal amount of such Note
or Notes. In such case, each of the Global Notes
representing such Note or Notes shall be assigned the
same CUSIP number.
Issue Price: Unless otherwise specified in an applicable
Pricing Supplement, each Note will be issued at the
percentage of principal amount specified in the
Prospectus relating to such Note.
Interest: General. Unless otherwise specified in the applicable
pricing supplement, each Note will bear interest at a
fixed rate (a "Fixed Rate Note"), which may be zero
during all or any part of the term in the case of
certain Notes issued at a price representing a
substantial discount from the principal amount
payable at Maturity, or at a floating rate (a
"Floating Rate Note"). Interest on each Note will
accrue from the Issue Date of such Note for the first
interest period and from the most recent Interest
Payment Date to which interest has been paid for all
subsequent interest periods. Except as set forth
hereafter, each payment of interest on a Note will
include interest accrued to but excluding, as the
case may be, the Interest Payment Date or the date of
Maturity (other than a Maturity Date of a Note
occurring on the 31st day of a month in which case
such payment of interest will include interest
accrued to but excluding the 30th day of such month).
Any payment of principal, premium or interest
required to be made on a day that is not a Business
Day (as defined below) may be made on the next
succeeding Business Day (or if, in the case of a
LIBOR-based Floating Rate Note, such business day
would fall in the next calendar month, on the next
preceding Business Day) and no interest shall accrue
as a result of any such delayed payment.
Each pending deposit message described under
Settlement Procedure "C" below will be routed to
Standard & Poor's Corporation, which will use the
message to include certain information regarding the
related Notes in the appropriate daily bond report
published by Standard & Poor's Corporation.
The interest rates the Company will agree to pay on
newly-issued Notes are subject to change without
notice by the Company from time to time, but no such
change will affect any Notes already issued or as to
which an offer to purchase has been accepted by the
Company.
-29-
Each payment of interest on a Note shall include
accrued interest from and including the Issue Date or
from and including the last day in respect of which
interest has been paid (or duly provided for), as the
case may be, to, but excluding, the Interest Payment
Date or Maturity Date, as the case may be.
Fixed Rate Notes. Each Fixed Rate Note will bear
interest from and including its Issue Date at the
rate per annum set forth thereon and in the
applicable Pricing Supplement until the principal
amount thereof is paid, or made available for
payment, in full. Unless otherwise specified in the
applicable Pricing Supplement, interest on each Fixed
Rate Note (other than a Zero-Coupon Note) will be
payable either monthly, quarterly, semi-annually or
annually on each Interest Payment Date and at
Maturity (or on the date of redemption or repayment
if a Note is repurchased by the Company prior to
maturity pursuant to mandatory or optional redemption
provisions or the Survivor's Option). Interest will
be payable to the person in whose name a Note is
registered at the close of business on the Regular
Record Date next preceding each Interest Payment
Date; provided, however, interest payable at
Maturity, on a date of redemption or in connection
with the exercise of the Survivor's Option will be
payable to the person to whom principal shall be
payable.
Any payment of principal, and premium, if any, or
interest required to be made on a Fixed Rate Note on
a day which is not a Business Day need not be made on
such day, but may be made on the next succeeding
Business Day with the same force and effect as if
made on such day, and no additional interest shall
accrue as a result of such delayed payment.
The Interest Payment Dates for a Note that provides
for monthly interest payments shall be the fifteenth
day of each calendar month (or the next Business
Day), commencing in the calendar month that next
succeeds the month in which the Note is issued. In
the case of a Note that provides for quarterly
interest payments, the Interest Payment Dates shall
be the fifteenth day of each third month (or the next
Business Day), commencing in the third succeeding
calendar month following the month in which the Note
is issued. In the case of a Note that provides for
semi-annual interest payments, the Interest Payment
dates shall be the fifteenth day of each sixth month
(or the next Business Day), commencing in the sixth
succeeding calendar month following the month in
which the Note is issued. In the case of a Note that
provides for annual interest payments, the Interest
Payment Date shall be the fifteenth day of every
twelfth month (or the next Business Day), commencing
in the twelfth succeeding calendar month following
the month
-30-
in which the Note is issued. The Regular Record Date
with respect to any Interest Payment Date shall be
the first day of the calendar month in which such
Interest Payment Date occurred, except that the
Regular Record Date with respect to the final
Interest Payment Date shall be the final Interest
Payment Date.
Floating Rate Notes. Interest on Floating Rate Notes
will be payable monthly, quarterly, semi-annually or
annually (each an "Interest Payment Date"). Unless
otherwise specified in the applicable Pricing
Supplement, the Regular Record Date with respect to
any Interest Payment Date shall be 15 calendar days
prior to such Interest Payment Date. Unless otherwise
specified in the applicable Pricing Supplement,
interest will be payable, in the case of Floating
Rate Notes with a monthly Interest Payment Period, on
the third Wednesday of each month; with a quarterly
Interest Payment Period, on the third Wednesday of
January, April, July and October of each year; with a
semi-annual Interest Payment Period, on the third
Wednesday of the two months of each year specified in
the applicable Pricing Supplement; and with an annual
Interest Payment Period, on the third Wednesday of
the month specified in the applicable Pricing
Supplement; provided that if an Interest Payment Date
for Floating Rate Notes would otherwise be a day that
is not a Business Day, such Interest Payment Date
will be the next succeeding Business Day with respect
to such Floating Rate Notes, except in the case of a
LIBOR Note if such Business Day is in the next
succeeding calendar month, in which event such
Interest Payment Date will be the immediately
preceding Business Day. In the case of a Global Note
issued between a Regular Record Date and the Interest
Payment Date relating to such Regular Record Date,
interest for the period beginning on the Issue Date
and ending on such Interest Payment Date shall be
paid on the Interest Payment Date following the next
succeeding Regular Record Date to the registered
Holder on such next succeeding Regular Record Date.
Calculation
of Interest: Interest on Fixed Rate Notes (including interest for
partial periods) will be calculated on the basis of a
360-day year of twelve 30-day months. (Examples of
interest calculations are as follows: October 1, 2002
to April 1, 2003 equals 6 months and 0 days, or 180
days; the interest paid equals 180/360 times the
annual rate of interest times the principal amount of
the Note. The period from December 3, 2002 to April
1, 2003 equals 3 months and 28 days, or 118 days; the
interest payable equals 118/360 times the annual rate
of interest times the principal amount of the Note.)
Interest rates on Floating Rate Notes will be
determined as set forth in the form of Notes
(substantially as described in the Prospectus and the
-31-
applicable Pricing Supplement). Interest on Floating
Rate Notes will be calculated as specified in the
applicable pricing supplement.
Business Day: "Business Day" means, unless otherwise specified in
the applicable Pricing Supplement, any day, other
than a Saturday or Sunday, that meets the following
applicable requirement: such day is not a day on
which banking institutions are authorized or required
by law, regulation or executive order to be closed in
the City of New York and with respect to LIBOR-based
Floating Rate Notes, is also a London Banking Day. A
"London Banking Day" means any day on which dealings
in deposits in U.S. Dollars are transacted in the
London interbank market.
Payments of
Principal and
Interest: Payments of Principal and Interest. Promptly after
each Regular Record Date, the Trustee will deliver to
the Company and DTC a written notice specifying by
CUSIP number the amount of interest, if any, to be
paid on each Global Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with a Maturity Date) and the total of
such amounts. DTC will confirm the amount payable on
each Global Note on such Interest Payment Date by
reference to the daily bond reports published by
Standard & Poor's. On such Interest Payment Date, the
Company will pay to the Trustee, and the Trustee in
turn will pay to DTC, such total amount of interest
due (other than on the Maturity Date), at the times
and in the manner set forth below under "Manner of
Payment". If any Interest Payment Date for any Note
is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day (or
if, in the case of a LIBOR-based Floating Rate Note,
such Business Day would fall in the next calendar
month, on the next preceding Business Day) and no
interest shall accrue on such payment for the period
from and after such Interest Payment Date. Any
payment of principal, premium or interest required to
be made on a day that is not a Business Day may be
made on the next succeeding Business Day (or if, in
the case of a LIBOR-based Floating Rate Note, such
Business Day would fall in the next calendar month,
on the next preceding Business Day) and no interest
shall accrue as a result of any such delayed payment.
Payments on the Maturity Date. On or about the first
Business Day of each month, the Trustee will deliver
to the Company and DTC a written list of principal,
premium, if any, and interest to be paid on each
Global Note representing Notes maturing or subject to
redemption (pursuant to a sinking fund or otherwise)
or repayment ("Maturity") in the following month. The
Trustee, the Company and DTC will confirm the amounts
of such principal,
-32-
premium, if any, and interest payments with respect
to each Global Note on or about the fifth Business
Day preceding the Maturity Date of such Global Note.
On the Maturity Date, the Company will pay to the
Trustee, and the Trustee in turn will pay to DTC, the
principal amount of such Global Note, together with
interest and premium, if any, due on such Maturity
Date, at the times and in the manner set forth below
under "Manner of Payment". If the Maturity Date of
any Global Note is not a Business Day, the payment
due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
payment for the period from and after such Maturity
Date. Promptly after payment to DTC of the principal
and interest due on the Maturity Date of such Global
Note and all other Notes represented by such Global
Note, the Trustee will cancel and destroy such Global
Note in accordance with the Indenture and so advise
the Company.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Global Notes on
any Interest Payment Date or at Maturity shall be
paid by the Company to the Trustee in immediately
available funds on such date. The Company will make
such payment on such Global Notes by instructing the
Trustee to withdraw funds from an account maintained
by the Company with JPMorgan Chase Bank, by wire
transfer to JPMorgan Chase Bank or as otherwise
agreed with the Trustee. The Company will confirm
such instructions in writing to the Trustee. Prior to
10:00 a.m., New York City time, on the Maturity Date
or as soon as possible thereafter, the Trustee will
make payment to DTC in accordance with existing
arrangements between DTC and the Trustee, in funds
available for immediate use by DTC, each payment of
interest, principal and premium, if any, due on a
Global Note on such date. On each Interest Payment
Date (other than on the Maturity Date) the Trustee
will pay DTC such interest payments in same-day funds
in accordance with existing arrangements between the
Trustee and DTC. Thereafter, on each such date, DTC
will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants with payments in amounts proportionate
to their respective holdings in principal amount of
beneficial interest in such Global Note as are
recorded in the book-entry system maintained by DTC.
Neither the Company nor the Trustee shall have any
direct responsibility or liability for the payment by
DTC of the principal of, or premium, if any, or
interest on, the Notes to such Participants.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Note will be determined and withheld by
the Participant, indirect participant in DTC or other
person in
-33-
the chain of payment that is responsible for
withholding such tax under applicable law.
Procedure for
Rate Setting
and Posting: The Company and the Purchasing Agent will discuss,
from time to time, the aggregate principal amounts
of, the Maturities, the Issue Price and the interest
rates to be borne by Notes that may be sold as a
result of the solicitation of orders by the Agents.
If the Company decides to set interest rates borne by
any Notes in respect of which the Agents are to
solicit orders (the setting of such interest rates to
be referred to herein as "Posting") or if the Company
decides to change interest rates previously posted by
it, it will promptly advise the Purchasing Agent of
the prices and interest rates to be posted. The
Purchasing Agent in turn will advise the Agents and
Selling Group Members.
The Company will assign a separate CUSIP number for
each tranche of Notes to be posted, and will so
advise and notify the Trustee and Purchasing Agent of
said assignment by telephone and/or by telecopier or
other form of electronic transmission. The Purchasing
Agent will, in turn, include the assigned CUSIP
number on all Posting notices communicated to the
Agents and Selling Group members.
Offering of Notes: In the event that there is a Posting, the Purchasing
Agent will communicate to each of the Agents and
Selling Group members the aggregate principal amount
and Maturities of, along with the interest rates to
be borne by, each tranche of Notes that is the
subject of the Posting. Thereafter, the Purchasing
Agent, along with the other Agents and the Selling
Group, will solicit offers to purchase the Notes
accordingly.
Purchase of Notes
by the Purchasing
Agent: Unless otherwise agreed by the Company and the
Purchasing Agent, the Purchasing Agent will, no later
than 4:00 p.m. (New York City time) on the sixth day
subsequent to the day on which such Posting occurs,
or if such sixth day is not a day on which commercial
banks in New York City are not required or authorized
to be in operation (not a "Business Day"), on the
preceding Business Day, or on such other Business Day
and time as shall be mutually agreed upon by the
Company and the Agents (any such day, a "Trade Day"),
(i) complete, execute and deliver to the Company a
Terms Agreement that sets forth, among other things,
the amount of each tranche that the Purchasing Agent
is offering to purchase or (ii) inform the Company
-34-
that none of the Notes of a particular tranche will
be purchased by the Purchasing Agent.
Acceptance
and Rejection
of Orders: Unless otherwise agreed by the Company and the
Agents, the Company has the sole right to accept
orders to purchase Notes and may reject any such
order in whole or in part. Unless otherwise
instructed by the Company, the Purchasing Agent will
promptly advise the Company by telephone of all
offers to purchase Notes received by it, other than
those rejected by it in whole or in part in the
reasonable exercise of its discretion. No order for
less than $1,000 principal amount of Notes will be
accepted.
Upon receipt of a completed and executed Terms
Agreement from the Purchasing Agent, the Company will
(i) promptly execute and return such Terms Agreement
to the Purchasing Agent or (ii) inform the Purchasing
Agent that its offer to purchase the Notes of a
particular tranche has been rejected, in whole or in
part. The Purchasing Agent will thereafter promptly
inform the other Agents and participating Selling
Group members of the action taken by the Company.
Preparation
of Pricing
Supplement: If any offer to purchase a Note is accepted by or on
behalf of the Company, the Company will provide a
Pricing Supplement (substantially in the form
attached to the Selling Agent Agreement as Exhibit F)
reflecting the terms of such Note and will have filed
such Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule
424(b) under the Act and will supply a copy thereof
(or additional copies if requested) to the Purchasing
Agent and one copy to the Trustee. The Purchasing
Agent will cause a Prospectus and Pricing Supplement
to be delivered to each of the other Agents and
Selling Group members that purchased such Notes, and
each of these, in turn, will pursuant to the terms of
the Selling Agent Agreement and the Master Selected
Dealer Agreement, cause to be delivered a copy of the
applicable Pricing Supplement to each purchaser of
Notes from such Agent or Selling Group member.
In each instance that a Pricing Supplement is
prepared, the Agents will deliver the Pricing
Supplement together with the Prospectus prior to its
use. Outdated Pricing Supplements and the
Prospectuses to which they are attached (other than
those retained for files) will be destroyed.
-35-
Delivery of
Confirmation and
Prospectus to
Purchaser by
Presenting
Agent: Subject to "Suspension of Solicitation, Amendment or
Supplement" below, the Agents will deliver a
Prospectus and Pricing Supplement as herein described
with respect to each Note sold by it.
For each offer to purchase a Note solicited by an
Agent and accepted by or on behalf of the Company,
the Purchasing Agent will issue a confirmation to the
purchaser, with notification to the Company, setting
forth the terms of such Note and other applicable
details described above and delivery and payment
instructions. In addition, the Purchasing Agent will
deliver to such purchaser the Prospectus (including
the Pricing Supplement) in relation to such Note
prior to or together with the earlier of any written
offer of such Note, delivery of the confirmation of
sale or delivery of the Note.
Settlement: The receipt of immediately available funds by the
Company in payment for Notes and the authentication
and issuance of the Global Note representing such
Notes shall constitute "Settlement" with respect to
such Note. All orders accepted by the Company will be
settled within one to three Business Days pursuant to
the timetable for Settlement set forth below, unless
the Company and the purchaser agree to Settlement on
a later date, and shall be specified upon acceptance
of such offer; provided, however, in all cases the
Company will notify the Trustee on the date issuance
instructions are given.
Settlement
Procedures: In the event of a purchase of Notes by any Agent, as
principal, appropriate Settlement details, if
different from those set forth below, will be set
forth in the applicable Terms Agreement to be entered
into between such Agent and the Company pursuant to
the Agreement. Settlement Procedures with regard to
each Note sold by an Agent, as agent for the Company,
shall be as follows:
A. After the acceptance of an offer by the
Company with respect to a Note, the
Purchasing Agent will communicate the
following details of the terms of such offer
(the "Note Sale Information") to the Company
by telephone confirmed in writing or by
facsimile transmission or other acceptable
written means:
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1. Principal amount of the purchase;
2. If a Fixed Rate Note, the Interest
Rate;
3. Interest Payment Dates;
4. Settlement Date;
5. Maturity Date;
6. Purchase Price;
7. Purchasing Agent's commission
determined pursuant to Section IV(a)
of the Selling Agent Agreement;
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the
Company, such of the following as
are applicable:
(i) The date on and after which
such Note may be redeemed
(the "Redemption
Commencement Date"),
(ii) Initial redemption price
(% of par), and
(iii) Amount (% of par) that the
initial redemption price
shall decline (but not below
par) on each anniversary of
the Redemption Commencement
Date;
11. Whether the Note has the Survivor's
Option;
12. If a Floating Rate Note, such of the
following as are applicable:
(i) Base Interest Rate,
(ii) Index Maturity,
(iii) Spread and/or Spread
Multiplier,
(iv) Maximum Interest Rate,
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(v) Minimum Interest Rate,
(vi) Initial Interest Rate,
(vii) Interest Rate Reset Period,
(viii) Interest Rate Reset Dates,
(ix) Calculation Dates,
(x) Interest Calculation Dates,
(xi) Interest Payment Dates,
(xii) Regular Record Dates, and
(xiii) Calculation Agent;
13. Whether the Note is issued with
original issue discount and, if so,
the total amount of original issue
discount, the yield to maturity and
the initial accrual period of
original issue discount;
14. DTC Participant Number of the
institution through which the
customer will hold the beneficial
interest in the Global Note; and
15. Such other terms as are necessary to
complete the applicable form of
Note.
B. The Company will confirm the previously
assigned CUSIP number to the Global Note
representing such Note and then advise the
Trustee and the Purchasing Agent by
telephone (confirmed in writing at any time
on the same date) or by telecopier or other
form of electronic transmission of the
information received in accordance with
Settlement Procedure "A" above, the assigned
CUSIP number and the name of the Purchasing
Agent. Each such communication by the
Company will be deemed to constitute a
representation and warranty by the Company
to the Trustee and the Agents that (i) such
Note is then, and at the time of issuance
and sale thereof will be, duly authorized
for issuance and sale by the Company; (ii)
such Note, and the Global Note representing
such Note, will conform with
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the terms of the Indenture; and (iii) upon
authentication and delivery of the Global
Note representing such Note, the aggregate
principal amount of all Notes issued under
the Indenture will not exceed the aggregate
principal amount of Notes authorized for
issuance at such time by the Company.
C. The Trustee will communicate to DTC and the
Purchasing Agent through DTC's Participant
Terminal System, a pending deposit message
specifying the following Settlement
information:
1. The information received in
accordance with Settlement Procedure
"A".
2. The numbers of the participant
accounts maintained by DTC on behalf
of the Trustee and the Purchasing
Agent.
3. The initial Interest Payment Date
for such Note, number of days by
which such date succeeds the related
DTC record date (which term means
the Regular Record Date) and in the
case of Floating Rate Notes which
reset daily or weekly, the date five
calendar days preceding such Initial
Interest Payment Date, and if then
calculated, the amount of interest
payable on such Initial Interest
Payment Date (which amount shall
have been confirmed by the Trustee).
4. The CUSIP number of the Global Note
representing such Notes.
5. The frequency of interest.
6. Whether such Global Note represents
any other Notes issued or to be
issued (to the extent then known).
D. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
E. The Trustee will complete and deliver a
Global Note representing such Note in a form
that has been approved by the Company, the
Agents and the Trustee.
F. The Trustee will authenticate the Global
Note representing such Note and maintain
possession of such Global Note.
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G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to
the Trustee's participant account and credit
such Note to the participant account of the
Agent maintained by DTC and (ii) debit the
settlement account of the Agent and credit
the settlement account of the Trustee
maintained by DTC, in an amount equal to the
price of such Note less the Purchasing
Agent's commission. The entry of such a
deliver order shall be deemed to constitute
a representation and warranty by the Trustee
to DTC that (a) the Global Note representing
such Note has been issued and authenticated
and (b) the Trustee is holding such Global
Note pursuant to the Certificate Agreement.
H. The Purchasing Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit
such Note to the Purchasing Agent's
participant account and credit such Note to
the participant accounts of the Participants
to whom such Note is to be credited
maintained by DTC and (ii) debit the
settlement accounts of such Participants and
credit the settlement account of the
Purchasing Agent maintained by DTC, in an
amount equal to the price of the Note so
credited to their accounts.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
J. The Trustee will credit to an account of the
Company maintained at JPMorgan Chase Bank
funds available for immediate use in an
amount equal to the amount credited to the
Trustee's DTC participant account in
accordance with Settlement Procedure "G".
K. The Trustee will send a copy of the Global
Note representing such Note by first-class
mail to the Company.
L. The Purchasing Agent will confirm the
purchase of each Note to the purchaser
thereof either by transmitting to the
Participant to whose account such Note has
been credited a confirmation order through
DTC's Participant Terminal System or by
mailing a written confirmation to such
purchaser. In all cases the Prospectus as
most recently amended or supplemented must
accompany or precede such confirmation.
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M. Each Business Day, the Trustee will send to
the Company a statement setting forth the
principal amount of Notes outstanding as of
that date under the Indenture and setting
forth the CUSIP number(s) assigned to, and a
brief description of, any orders which the
Company has advised the Trustee but which
have not yet been settled.
Settlement
Procedures
Timetable: In the event of a purchase of Notes by the Purchasing
Agent, as principal, appropriate Settlement details,
if different from those set forth below will be set
forth in the applicable Terms Agreement to be entered
into between the Purchasing Agent and the Company
pursuant to the Selling Agent Agreement.
For orders of Notes solicited by an Agent, as agent,
and accepted by the Company, Settlement Procedures
"A" through "M" shall be completed as soon as
possible but not later than the respective times (New
York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 4:00 p.m. on the Trade Day.
B 5:00 p.m. on the Trade Day.
C 2:00 p.m. on the Business Day before
the Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 a.m. on the Settlement Date.
G-H 2:00 p.m. on the Settlement Date.
I 4:45 p.m. on the Settlement Date.
▇-▇ 5:00 p.m. on the Settlement Date.
M Weekly or at the request of the
Company.
NOTE: The Prospectus as most recently amended or
supplemented must accompany or precede any written
confirmation given to the customer (Settlement
Procedure "L"). Settlement Procedure "I" is subject
to extension in accordance with any extension Fedwire
closing deadlines and in the other events specified
in the SDFS operating procedures in effect on the
Settlement Date.
If Settlement of a Note is rescheduled or cancelled,
the Trustee will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
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to such effect by no later than 2:00 p.m., New York
City time, on the Business Day immediately preceding
the scheduled Settlement Date.
Failure to
Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note pursuant to Settlement
Procedure "G", the Trustee may deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to the participant account of the
Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant
account contains Notes having the same Fixed Rate
Terms, Floating Rate Terms or Zero-Coupon Terms, as
the case may be, having a principal amount that is at
least equal to the principal amount of such Note to
be debited. If withdrawal messages are processed with
respect to all the Notes issued or to be issued
represented by a Global Note, the Trustee will cancel
such Global Note in accordance with the Indenture,
make appropriate entries in its records and so advise
the Company. The CUSIP number assigned to such Global
Note shall, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately
reassigned. If withdrawal messages are processed with
respect to one or more, but not all, of the Notes
represented by a Global Note, the Trustee will
exchange such Global Note for two Global Notes, one
of which shall represent such Notes and shall be
cancelled immediately after issuance, and the other
of which shall represent the remaining Notes
previously represented by the surrendered Global Note
and shall bear the CUSIP number of the surrendered
Global Note. If the purchase price for any Note is
not timely paid to the Participants with respect to
such Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the related Agent may
enter SDFS deliver orders through DTC's participant
Terminal System reversing the orders entered pursuant
to Settlement Procedures "G" and "H", respectively.
Thereafter, the Trustee will deliver the withdrawal
message and take the related actions described in the
preceding paragraph. If such failure shall have
occurred for any reason other than default by the
Agent in the performance of its obligations hereunder
or under the Selling Agent Agreement, the Company
will reimburse the Agent on an equitable basis for
its loss of the use of funds during the period when
they were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note, DTC may take any
actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure
to settle with respect to one or more, but not all,
of Notes that were to have been represented by a
Global Note, the Trustee will provide, in accordance
with Settlement
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Procedures "D" and "E", for the authentication and
issuance of a Global Note representing the other
Notes to have been represented by such Global Note
and will make appropriate entries in its records.
Procedure for
Rate Changes: Each time a decision has been reached to change
rates, the Company will promptly advise the
Purchasing Agent of the new rates, who will forthwith
advise the Agents and Selling Group Members and will
suspend solicitation of purchases of Notes at the
prior rates. The Purchasing Agent may telephone the
Company with recommendations as to the changed
interest rates.
Suspension of
Solicitation,
Amendment or
Supplement: Subject to the Company's representations, warranties
and covenants contained in the Selling Agent
Agreement, the Company may instruct the Agents to
suspend at any time for any period of time or
permanently, the solicitation of orders to purchase
Notes. Upon receipt of such instructions (which may
be given orally), each Agent will forthwith suspend
solicitation until such time as the Company has
advised it that solicitation of purchases may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly
advise the Agents and the Trustee whether such orders
may be settled and whether copies of the Prospectus
as in effect at the time of the suspension may be
delivered in connection with the settlement of such
orders. The Company will have the sole responsibility
for such decision and for any arrangements which may
be made in the event that the Company determines that
such orders may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will
promptly advise the Agents and furnish the Agents and
the Trustee with the proposed amendment or supplement
and with such certificates and opinions as are
required, all to the extent required by and in
accordance with the terms of the Selling Agent
Agreement. Subject to the provisions of the Selling
Agent Agreement, the Company may file with the
Commission any supplement to the Prospectus relating
to the Notes. The Company will provide the Agents and
the Trustee with copies of any such supplement, and
confirm to the Agents that such supplement has been
filed with the Commission.
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Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the Trustee
to risk or expend its own funds in connection with
any payment to the Company, or the Agents or the
purchasers, it being understood by all parties that
payments made by the Trustee to either the Company or
the Agents shall be made only to the extent that
funds are provided to the Trustee for such purpose.
Advertising
Costs: The Company shall have the sole right to approve the
form and substance of any advertising an Agent may
initiate in connection with such Agent's solicitation
to purchase the Notes. The expense of such
advertising will be solely the responsibility of such
Agent, unless otherwise agreed to by the Company. The
Company agrees, with prior written approval in each
instance, that the Purchasing Agent may utilize the
Company's name, logo and service ▇▇▇▇ to identify the
Company as a member of the Direct Access Notes
Program in the Purchasing Agent's general materials
and marketing objectives relating to the Direct
Access Notes Program.
-44-
EXHIBIT E
GENERAL MOTORS ACCEPTANCE CORPORATION
SMARTNOTES(SM)
TERMS AGREEMENT
, 200_
General Motors Acceptance Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇: 482-B12-C24
Detroit, Michigan 48265-2000
Attention: U.S. Borrowings
The undersigned agrees to purchase [as Principal] [as Agent] the
following aggregate principal amount of Notes: $
The terms of such Notes shall be as follows:
CUSIP Number: _______
Maturity Date: _______
Price to Public: _______
Agent's Concession: _______%
Settlement Date, Time
and Place: _______
If Fixed Rate Note: _______
Interest Rate: _______%
Maturity Date: _______
Interest Payment Dates: _______
If Floating Rate Note: _______
Base Interest Rate: _______%
Index Maturity: _______
Spread and/or Spread Multiplier: _______%
Maximum Interest Rate: _______%
Minimum Interest Rate: _______%
Initial Interest Rate: _______%
Interest Rate Reset Period: _______
Interest Rate Reset Dates: _______
Interest Calculation Dates: _______
-45-
Interest Payment Dates: _______
Regular Record Dates: _______
Calculation Agent: _______
Survivor's Option: _______
Optional Redemption, if any: ______
Initial Redemption Date: _______
Redemption Price: Initially __% of Principal Amount and declining by
__% of the Principal Amount on each anniversary of the Initial
Redemption Date until the Redemption Price is 100% of the Principal
Amount.
[Any other terms and conditions agreed
to by such Agent and the Company]
ABN AMRO Financial Services, Inc.
By:_______________________
Title:______________________
ACCEPTED:
GENERAL MOTORS ACCEPTANCE CORPORATION
By:________________________________
Title:_____________________________
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Exhibit F
Form of Pricing Supplement
SMART NOTES
BY GMAC.
Pricing Supplement No. _________________________ Trade Date:
(To Prospectus dated ) Issue Date:
The date of this Pricing Supplement is (date)
CUSIP Stated Subject to
or Interest Maturity Price Payment Survivor's Redemption
Common Code Rate to Public Selling Frequency Option Date and terms of
or (1) Concession (Yes/No) redemption
Description
of Floating
Rate
-----------------------------
(1) Actual Price to Public may be less, and will be determined by prevailing
market prices at the time of purchase as set forth in the confirmation
statement.
{For Zero Coupon Notes} The yield to maturity for this Zero Coupon Notes is
dependent on the purchase price as determined by prevailing market prices at the
time of purchase. See confirmation statement for exact price and yield figures.
{For Original Issue Discount Notes} This Note is issued with original issue
discount and is subject to the tax provisions governing such debt instruments.
See the prospectus for detailed discussion of such provisions.
-47-
EXHIBIT G
Representative Form of Master Selected Dealer Agreement
[Name of Broker-Dealer]
[Broker-Dealer's Address]
Dear Selected Dealer:
In connection with public offerings of securities after the date hereof
for which we are acting as manager of an underwriting syndicate or are otherwise
responsible for the distribution of securities to the public by means of an
offering of securities for sale to selected dealers, you may be offered the
right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. Applicability of this Agreement. The terms and conditions
of this Agreement shall be applicable to any public offering of securities
("SECURITIES") pursuant to a registration statement filed under the Securities
Act of 1933 (the "SECURITIES ACT") or exempt from registration thereunder (other
than a public offering of Securities effected wholly outside the United States
of America), wherein ABN AMRO Financial Services, Inc. (acting for its own
account or for the account of any underwriting or similar group or syndicate) is
responsible for managing or otherwise implementing the sale of the Securities to
selected broker-dealers ("SELECTED DEALERS") and has expressly informed you that
such terms and conditions shall be applicable. Any such offering of Securities
to you as a Selected Dealer is hereinafter called an "OFFERING". In the case of
any Offering where we are acting for the account of any underwriting or similar
group or syndicate ("UNDERWRITERS"), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters, including, in
the case of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any
Offering will be subject to delivery of the Securities and their acceptance by
us and any other Underwriters, may be subject to the approval of all legal
matters by counsel and the satisfaction of other conditions, and may be made on
the basis of reservation of Securities or an allotment against subscription. We
will advise you by telegram, telex or other form of written communication
("WRITTEN COMMUNICATION", which term, in the case of any Offering described in
Section 3(a) or 3(b) hereof, may include a prospectus or offering circular) of
the particular method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date
-48-
referred to in Section 3(c) hereof) of any Offering in which you are invited to
participate. To the extent such supplementary terms and conditions are
inconsistent with any provision herein, such terms and conditions shall
supersede any such provision. Unless otherwise indicated in any such Written
Communication, acceptances and other communications by you with respect to an
Offering should be sent to ABN AMRO Financial Services, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇). We reserve the
right to reject any acceptance in whole or in part. Unless notified otherwise by
us, Securities purchased by you shall be paid for on such date as we shall
determine, on one business day's prior notice to you, by certified or official
bank check, in an amount equal to the Public Offering Prices (as hereinafter
defined) or, if we shall so advise you, at such Public Offering Price less the
Concession (as hereinafter defined), payable in immediately available funds to
the order of ABN AMRO Financial Services, Inc., against delivery of the
Securities. If Securities are purchased and paid for at such Public Offering
Price, such Concession will be paid after the termination of the provisions of
Section 3(c) hereof with respect to such Securities. Notwithstanding the
foregoing, unless notified otherwise by us, payment for and delivery of
Securities purchased by you shall be made through the facilities of The
Depository Trust Company, if you are a member, unless you have otherwise
notified us prior to the date specified in a Written Communication to you from
us or, if you are not a member, settlement may be made through a correspondent
who is a member pursuant to instructions which you will send to us prior to such
specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of
Securities that are registered under the Securities Act ("REGISTERED OFFERING"),
we shall provide you with such number of copies of each preliminary prospectus
and of the final prospectus relating thereto as you may reasonably request for
the purposes contemplated by the Securities Act and the Securities Exchange Act
of 1934 (the "EXCHANGE ACT") and the applicable rules and regulations of the
Securities and Exchange Commission (the "COMMISSION") thereunder. You represent
and warrant that you are familiar with Rule 15c2-8 under the Exchange Act
relating to the distribution of preliminary and final prospectuses and agree
that you will comply therewith. You agree to make a record of your distribution
of each preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, you will, upon our request, promptly forward copies
thereof to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to a
prospectus or by any Underwriter to give any information or to make any
representation not contained in the prospectus in connection with the sale of
such Securities.
-49-
(b) Offerings Pursuant to Offering Circular. In the case of
any Offering of Securities, other than a Registered Offering, which is made
pursuant to an offering circular or other document comparable to a prospectus in
a Registered Offering, including, without limitation, an Offering of "exempted
securities" as defined in Section 3(a)(12) of the Exchange Act (an "EXEMPTED
SECURITIES OFFERING"), we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular relating
thereto as you may reasonably request. You agree that you will comply with the
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no statements
whatsoever, written or oral, other than the statements in the final offering
circular delivered to you by us. You will not be authorized by the issuer or
other seller of Securities offered pursuant to an offering circular or by any
Underwriter to give any information or to make any representation not contained
in the offering circular in connection with the sale of such Securities.
(c) Offer and Sale to the Public. With respect to any Offering
of Securities, we will inform you by a Written Communication of the public
offering price, the selling concession, the reallowance (if any) to
broker-dealers and the time when you may commence selling Securities to the
public. After such public offering has commenced, we may change the public
offering price, the selling concession and the reallowance (if any) to
broker-dealers. The offering price, selling concession and reallowance (if any)
to broker-dealers at any time in effect with respect to an Offering are
hereinafter referred to, respectively, as the "PUBLIC OFFERING PRICE", the
"CONCESSION" and the "REALLOWANCE". With respect to each Offering of Securities,
until the provisions of this Section 3(c) shall be terminated pursuant to
Section 4 hereof, you agree to offer Securities to the public at no more than
the Public Offering Price. If notified by us, you may sell securities to the
public at a lesser negotiated price than the Public Offering Price, but in an
amount not to exceed the Concession. If a Reallowance is in effect, a
reallowance from the Public Offering Price not in excess of such Reallowance may
be allowed as consideration for services rendered in distribution to
broker-dealers (i) who are actually engaged in the investment banking or
securities business, (ii) who execute the written agreement prescribed by Rule
2740(c) of the Conduct Rules of the National Association of Securities Dealers.
Inc. (the "NASD") and (iii) who, if they are foreign banks, broker-dealers or
institutions not eligible for membership in the NASD, represent to you that they
will promptly reoffer such Securities at the Public Offering Price and will
abide by the conditions with respect to foreign banks, broker-dealers and
institutions set forth in Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may,
with respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree not to
purchase and sell Securities for which an order from a client has not
-50-
been received without our consent in each instance. You further agree that, upon
our request at any time and from time to time prior to the termination of the
provisions of Section 3(c) hereof with respect to any Offering, you will report
to us the amount of Securities purchased by you pursuant to such Offering which
then remain unsold by you and will, upon our request at any such time, sell to
us for our account or the account of one or more Underwriters such amount of
such unsold Securities as we may designate at the Public Offering Price less an
amount to be determined by us not in excess of the Concession. If, prior to the
later of (i) the termination of the provisions of Section 3(c) hereof with
respect to any Offering or (ii) the covering by us of any short position created
by us in connection with such Offering for our account or the account of one or
more Underwriters, we purchase or contract to purchase for our account or the
account of one or more Underwriters in the open market or otherwise any
Securities purchased by you under this Agreement as part of such Offering, you
agree to pay us on demand an amount equal to the Concession with respect to such
Securities (unless you shall have purchased such Securities pursuant to Section
2 hereof at the Public Offering Price in which case we shall not be obligated to
pay such Concession to you pursuant to Section 2) plus transfer taxes and
broker's commissions or dealer's ▇▇▇▇-up, if any, paid in connection with such
purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually
engaged in the investment banking or securities business. In addition, you
further represent and warrant that you are either (i) a member in good standing
of the NASD, (ii) a foreign bank, broker-dealer or institution not eligible for
membership in the NASD which agrees not to make any sales within the United
States, its territories or its possessions or to persons who are citizens
thereof or residents therein, and in making any other sales to comply with the
NASD's interpretation with respect to free riding and withholding, or (iii),
solely in connection with an Exempted Securities Offering, a bank, as defined in
Section 3(a)(6) of the Exchange Act, that does not otherwise fall within
provision (i) or (ii) of this sentence (a "BANK"). You further represent, by
your participation in an Offering, that you have provided to us all documents
and other information required to be filed with respect to you, any related
person or any person associated with you or any such related person pursuant to
the supplementary requirements of the NASD's interpretation with respect to
review of corporate financing as such requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a selling Concession, discount or other allowance is received
or granted, (1) you will comply with the provisions of Rule 2740 of the Conduct
Rules of the NASD, (2) if you are a non-NASD member broker or dealer in a
foreign country, you will also comply (a), as though you were an NASD member,
with the provision of Rules 2730, 2740 and 2750 of the Conduct Rules and (b)
with Rule 2420 of the Conduct Rules as that Rule applies to a non-NASD member
broker or dealer in a foreign country and (3), in connection with an Exempted
Securities Offering, if you are a Bank, you will also comply, as though you were
an NASD member, with the provision of Rules 2730, 2740 and 2750 of the Conduct
Rules.
-51-
You further agree that, in connection with any purchase of
securities from us that is not otherwise covered by the terms of this Agreement
(whether we are acting as manager, as a member of an underwriting syndicate or a
selling group or otherwise), if a selling Concession, discount or other
allowance is granted to you, clauses (1), (2) and (3) of the preceding paragraph
will be applicable.
(f) Relationship among Underwriters and Selected Dealers. We
may buy Securities from or sell Securities to any Underwriter or Selected Dealer
and the Underwriters (if any) and the Selected Dealers may purchase Securities
from and sell Securities to each other at the Public Offering Price less all or
any part of the Reallowance. You are not authorized to act as agent for us, any
Underwriter or the issuer or other seller of any Securities in offering
Securities to the public or otherwise. Neither we nor any Underwriter shall be
under any obligation to you except for obligations assumed hereby or in any
Written Communication from us in connection with any Offering. Nothing contained
herein or in any Written Communication from us shall constitute the Selected
Dealers an association or partners with us or any Underwriter or with one
another. If the Selected Dealers, among themselves or with the Underwriters,
should be deemed to constitute a partnership for Federal income tax purposes,
then you elect to be excluded from the application of Subchapter K, Chapter 1,
Subtitle A of the Internal Revenue Code of 1986 and agree not to take any
position inconsistent with that election. You authorize us, in our discretion,
to execute and file on your behalf such evidence of that election as may be
required by the Internal Revenue Service. In connection with any Offering, you
shall be liable for your proportionate amount of any tax, claim, demand or
liability that may be asserted against you alone or against one or more Selected
Dealers participating in such Offering, or against us or the Underwriters, based
upon the claim that the Selected Dealers, or any of them, constitute an
association, an unincorporated business or other entity, including, in each
case, your proportionate amount of any expense incurred in defending against any
such tax, claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform you
as to any advice we have received from counsel concerning the jurisdictions in
which Securities have been qualified for sale or are exempt under the securities
or blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
(h) Compliance with Law. You agree that in selling Securities
pursuant to any Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities) you will comply with all applicable
laws, rules and regulations, including the applicable provisions of the
Securities Act and the Exchange Act, the applicable rules and regulations of the
Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, the applicable rules and regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules
and regulations specified in Section 3(b) hereof.
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(i) You are aware that other than registering the Notes under
the Securities Act, no action has been or will be taken by the Company that
would permit the offer or sale of the Notes or possession or distribution of the
Prospectus or any other offering material relating to the Notes in any
jurisdiction where action for that purpose is required. Accordingly, you agree
that you will observe all applicable laws and regulations in each jurisdiction
in or from which you may directly or indirectly acquire, offer, sell or deliver
Notes or have in your possession or distribute the Prospectus or any other
offering material relating to the Notes and you will obtain any consent,
approval or permission required by you for the purchase, offer or sale by you of
Notes under the laws and regulations in force in any such jurisdiction to which
you are subject or in which you make such purchase, offer or sale. Neither the
Company nor any other Agent shall have any responsibility for determining what
compliance is necessary by you or for your obtaining such consents, approvals or
permissions. You further agree that you will take no action that will impose any
obligations on the Company or the other Agents. Subject as provided above, you
shall, unless prohibited by applicable law, furnish to each person to whom you
offer, sell or deliver Notes a copy of the Prospectus (as then amended or
supplemented) or (unless delivery of the Prospectus is required by applicable
law) inform each such person that a copy thereof (as then amended or
supplemented) will be made available upon request. You are not authorized to
give any information or to make any representation not contained in the
Prospectus or the documents incorporated by reference or specifically referred
to therein in connection with the offer and sale of the Notes.
(4) Indemnification. You agree to indemnify and hold harmless
ABN AMRO Financial Services, Inc., the issuer of the Securities, each person, if
any, who controls (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) ABN AMRO Financial Services, Inc. or the
issuer of the Securities, and their respective directors, officers, and
employees from and against any and all losses, liabilities, costs or claims (or
actions in respect thereof) (collectively, "LOSSES") to which any of them may
become subject (including all reasonable costs of investigating, disputing or
defending any such claim or action), insofar as such Losses arise out of or are
in connection with the breach of any representation, warranty, or agreement made
by you herein.
If any claim, demand, action or proceeding (including any
governmental investigation) shall be brought or alleged against an indemnified
party in respect of which indemnity is to be sought against an indemnifying
party, the indemnified party shall promptly notify the indemnifying party in
writing, and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnified party may
designate in such proceeding and shall pay the reasonable fees and expenses of
such counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the reasonable fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, (ii) the indemnifying party has failed
within a reasonable time to retain counsel reasonably satisfactory to such
indemnified party or (iii) the named parties to any such proceeding (including
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any impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
agreed that the indemnifying party shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate law firm (in addition to local
counsel where necessary) for all such indemnified parties. Such firm shall be
designated in writing by the indemnified party. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
The indemnity agreements contained in this Section and the
representations and warranties by you in this Agreement, shall remain operative
and in full force and effect regardless of: (i) any termination of this
Agreement; (ii) any investigation made by an indemnified party or on such
party's behalf or any person controlling an indemnified party or by or on behalf
of the indemnifying party, its directors or officers or any person controlling
the indemnifying party; and (iii) acceptance of and payment for any Securities.
5. Termination, Supplements and Amendments. This Agreement may
be terminated by Written Communication to the other affected party or parties.
Until so terminated, this Agreement shall continue in full force and effect.
This Agreement may be supplemented or amended by us by written notice thereof to
you, and any such supplement or amendment to this Agreement shall be effective
with respect to any Offering to which this Agreement applies after the date of
such supplement or amendment. Each reference to "this Agreement" herein shall,
as appropriate, be to this Agreement as so amended and supplemented. The terms
and conditions set forth in Section 3(c) hereof with regard to any Offering will
terminate at the close of business on the 30th day after the commencement of the
public offering of the Securities to which such Offering relates, but in our
discretion may be extended by us for a further period not exceeding 30 days and
in our discretion, whether or not extended, may be terminated at any earlier
time.
6. Successors and Assigns. This Agreement shall be binding on,
and inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
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7. Governing Law. This Agreement and the terms and conditions
set forth herein with respect to any Offering together with such supplementary
terms and conditions with respect to such Offering as may be contained in any
Written Communication from us to you in connection therewith shall be governed
by, and construed in accordance with, the laws of the State of New York.
Please confirm by signing and returning to us the enclosed
copy of this Agreement that your subscription to, or your acceptance of any
reservation of, any Securities pursuant to an Offering shall constitute (i)
acceptance of and agreement to the terms and conditions of this Agreement (as
supplemented and amended pursuant to Section 4 hereof) together with and subject
to any supplementary terms and conditions contained in any Written Communication
from us in connection with such Offering, all of which shall constitute a
binding agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you have requested and received from us sufficient copies of
the final prospectus or offering circular, as the case may be, with respect to
such Offering in order to comply with your undertakings in Section 3(a) or 3(b)
hereof.
Very truly yours,
ABN AMRO FINANCIAL SERVICES, INC.
By: ___________________________________
Name:
Title:
CONFIRMED: ________ __, 2002
(NAME OF BROKER-DEALER)
By: _________________________________________
Name:
Title:
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