EXHIBIT 1
GENERAL MOTORS ACCEPTANCE CORPORATION
MEDIUM-TERM NOTES
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
September 30, 2003
[Name and Address of Agent]
Dear Sirs:
General Motors Acceptance Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell its Medium-Term Notes 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 December 1, 1993, as supplemented
from time to time, between the Company and Citibank, N.A., 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 to enter into agreements substantially identical hereto
with other agents and (2) agrees that whenever the Company determines to sell
Notes directly to you as principal for resale to others, it will enter into a
Terms Agreement relating to such sale in accordance with the provisions of
Section V hereof.
I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement No. 333-55440 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"). The 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"). The 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.
If you purchase Notes as principal, your obligations hereunder 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 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, each of which conditions shall be met
on the corresponding Settlement Date. Further, if specifically called for by any
written agreement by you to purchase Notes as principal, your obligations
hereunder 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.
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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
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.
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(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.
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.
As Agent, you are authorized to solicit orders for the Notes only in
denominations of U.S.$5,000 or more (in multiples of U.S.$1,000). All Notes
shall be sold at a purchase price equal to 100% of their principal amount plus
accrued interest, if any, unless the Company shall have authorized an offer of
Notes at a discount or premium. 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. Unless otherwise instructed by the Company, you shall
communicate to the Company, orally or in writing, each offer to purchase Notes.
The Company shall have the sole right 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 to by you and the Company, the Company agrees to pay you a commission in
the form of a discount equal to the percentages of the initial offering price of
each Note sold as Agent as set forth in Exhibit C hereto, provided that the
purchase of such Notes was solicited by you as Agent. The Company may also sell
Notes to an Agent as principal for its own account at a discount equal to the
commission applicable to any agency sale of a Note of identical maturity, unless
otherwise specified in the applicable Pricing Supplement. Such Notes may be
resold to one or more investors and other purchasers at varying prices related
to prevailing market prices at the time of resale, as determined by such Agent,
or if so agreed, at a fixed public offering price. Without the prior approval of
the
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Company, you may not reallow any portion of the commission payable to you as
Agent to dealers or purchasers in connection with the offer and sale of any
Notes.
(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.
V.
Each sale of Notes to you as principal shall be made in accordance with
the terms of this Agreement and a separate agreement to be entered into between
us which will provide for the sale of such Notes to, and the purchase and
reoffering thereof, by you. Each such separate agreement (which may be an oral
agreement and confirmed in writing as described below between you 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 you.
A Terms Agreement may also consist of the Pricing Supplement agreed to for such
sale. Your 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, may specify,
among other things, the principal amount of Notes to be purchased by you
pursuant thereto, 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 and any other relevant terms. Unless expressly prohibited by the
Company in the Terms Agreement relating to a sale of Notes to you, you are
authorized to utilize a selling or dealer group in connection with the resale of
the Notes purchased and may reallow any portion of the discount paid to you by
the Company. Terms Agreements, each of which shall be substantially in the form
of Exhibit E hereto, or as otherwise agreed between the Company and you as
principal, may take the form of an exchange of any standard form of written
telecommunication between you and the Company.
VI.
The Company represents and warrants to you that as of each date on
which the Company accepts an offer to purchase Notes (including any purchase by
you 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
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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. 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 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
(in the case of a Form 10-Q, if requested in writing), 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
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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
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.
You agree 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.
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
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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 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 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 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
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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.
Any Terms Agreement shall be subject to termination in your absolute
discretion on the terms set forth or incorporated by reference therein. The
termination of this Agreement shall not require termination of any agreement by
you to purchase Notes as principal, and the termination of any such 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 telex, telecopier or registered mail to the
Company at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopier number
▇▇▇-▇▇▇-▇▇▇▇, marked for the attention of the Corporate 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
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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.
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 and of the
Trustee and its counsel; (iv) the fees of any Calculation Agent and any Exchange
Rate Agent; (v) the printing and delivery to you in quantities as hereinabove
stated of copies of the Registration Statement and the Prospectus; and (vi) 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:______________________________
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Confirmed and accepted
as of the date first above
written:
[Name of Agent]
By:______________________________
Title:___________________________
[Address of Agent]
Attention:
Telephone:
Facsimile:
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EXHIBIT A
Opinion of Company Counsel
September 30, 2003
[Agent Name and Address]
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") between the Corporation and you (the "Agent"). The
Selling Agent Agreement relates to the offering (the "Offering") of Medium Term
Notes 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 December 1, 1993 (the "Indenture"),
by and between the Corporation and Citibank, N.A. 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;
(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 Notes;
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(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 you 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 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;
-13-
(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 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
-14-
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 assumption in respect to the 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. I have
also made other assumptions that I believe to be appropriate for purposes of
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
-15-
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 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
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
-16-
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
-17-
EXHIBIT B
Opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
September 24, 2003
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Citigroup Global Markets Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
UBS Securities LLC
Banc of America Securities LLC
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for you, the sales agents (the "Agents") named
of the Selling Agent Agreement dated September 30, 2003 (the "Selling Agent
Agreement") between you and General Motors Acceptance Corporation, a Delaware
corporation (the "Company"), under which you have agreed to act as an agent for
the Company to solicit purchasers for, or to purchase from the Company as
principal, up to $20,000,000,000 (or the equivalent thereof in foreign
currencies or composite currencies) aggregate initial public offering price of
the Company's Medium-Term Notes (the "Notes"). The Notes will be issued pursuant
to the provisions of an indenture dated as of December 1, 1993, as amended by a
First Supplemental Indenture dated as of January 1, 1998 (together, the
"Indenture") between the Company and Citibank, N.A., 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-XXXX) (other than the documents
incorporated by reference in the 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
-18-
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 prospectus (including the Incorporated
Documents) dated September ___, 2003, is hereinafter referred to as the
"Prospectus".
We have assumed the conformity of the documents filed with the
Commission via the Electronic Data Gathering, Analysis and Retrieval System
("▇▇▇▇▇"), except for required ▇▇▇▇▇ formatting changes, to physical copies of
the documents delivered to the Underwriters and submitted for our examination.
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 and is a valid and binding agreement of the
Company.
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 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) any part of the Registration Statement, when
-19-
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 statement 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.
We wish to point out that the preceding paragraph does not address any
application of the Commodity Exchange Act, as amended, or the rules, regulations
or interpretations of the Commodity Futures Trading Commission to Notes the
payments of principal or interest on which will be determined by reference to
one or more currency exchange rates, commodity prices, equity indices or other
factors. In addition, for the purpose of the 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 connection with our opinion
in paragraph (2) above, we note that, as of the date of this opinion, a judgment
for money in an action based on Notes payable in foreign or composite currencies
in a federal or state court in the United States ordinarily would be enforced in
the United States only in United States dollars. The date used to determine the
rate of conversion of the foreign or composite currency in which a particular
Note is payable into United States dollars will depend upon various factors,
including which court renders the judgment.
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.
-20-
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,
-21-
EXHIBIT C
GMAC
MEDIUM-TERM NOTES
DEALER AGENT PROGRAM
The following Selling Commissions as a percentage of the principal amount are
payable on each Note sold by the applicable Agent.
9 months to less than 12 months........................................ .050%
12 months to less than 18 months....................................... .075%
18 months to less than 24 months....................................... .125%
24 months to less than 36 months....................................... .175%
36 months to less than 48 months....................................... .250%
48 months to less than 60 months....................................... .300%
60 months to less than 72 months....................................... .350%
72 months to less than 84 months....................................... .375%
84 months to less than 96 months....................................... .400%
96 months to less than 108 months...................................... .425%
108 months to less than 120 months..................................... .450%
120 months to less than 180 months..................................... .475%
180 months to less than 240 months..................................... .550%
240 months to 360 months............................................... .600%
-22-
EXHIBIT D
GENERAL MOTORS ACCEPTANCE CORPORATION
MEDIUM-TERM NOTES
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
Medium-Term Notes, Due from Nine Months to Thirty Years from Date of Issue are
offered on a continuing basis by General Motors Acceptance Corporation through
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
Citigroup Global Markets Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇
Brothers Inc., ▇.▇.▇▇▇▇▇▇ Securities Inc., Bear, ▇▇▇▇▇▇▇ & Co. Inc., UBS
Securities LLC, and Banc of America Securities LLC, as agents (the "Agents"),
who have agreed to use their reasonable best efforts to solicit purchases of the
Notes. The Notes are being sold pursuant to Selling Agent Agreements, each dated
September 30, 2003 between the Company and each of the Agents (the "Agent
Agreements"). The Company has reserved the right to sell Notes directly on its
own behalf. The Notes will be senior debt and have been registered with the
Securities and Exchange Commission (the "Commission"). Citibank, N.A. is the
trustee (the "Trustee") under an Indenture dated as of December 1, 1993, as
amended from time to time, between the Company and the Trustee (the "Indenture")
covering the Notes. Pursuant to the terms of the Indenture, Citibank, N.A. also
will serve as authenticating agent, issuing agent and paying agent. Unless
otherwise specified in a Pricing Supplement, Citibank, N.A. will also serve as
calculation agent and exchange agent with respect to the Notes.
The 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. 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.
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 Comptroller'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.
-23-
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 March 3, 2000, and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated October 31,
1988, and its obligations as a participant in DTC, including DTC's Same-Day
Funds Settlement System ("SDFS").
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.
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; all Currency Indexed Notes
which have the same terms (collectively, the "Currency Indexed
Note Terms"), will be represented initially by a single Global
Certificate in fully registered form without coupons; and all
Indexed Notes which have the same index or formula as its
determination reference (the "Indexed Note Terms") will be
represented initially by a single Global Certificate in fully
registered form without coupons.
-24-
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: 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 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 a Note will be accomplished by book entries made
by DTC and, in turn, by Participants (and in certain cases,
one or more indirect
-25-
participants in DTC) acting on behalf of beneficial
transferors and transferees of such Note .
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 or Currency Indexed Note Terms or Indexed
Note 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 U.S.$500,000,000 in aggregate principal
amount, one replacement Global Note will be authenticated and
issued to represent each U.S.$500,000,000 of principal 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).
Denominations: Notes will be issued in denominations of U.S.$5,000 or more
(in multiples of U.S.$1,000). Global Notes will be denominated
in principal amounts not in excess of U.S.$500,000,000. If one
or more Notes having an aggregate principal amount in excess
of U.S.$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 U.S.$500,000,000 principal 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.
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Currently, Notes denominated in a Specified Currency other
than U.S. dollars ("Foreign Currency Notes") cannot be issued
in book-entry form through DTC. If and when such issuance
becomes possible, unless otherwise indicated in the applicable
Pricing Supplement, holders of Foreign Currency Notes (other
than Indexed Notes) will be paid in U.S. dollars, converted
from the Specified Currency, in the manner specified in the
Prospectus for interest on Notes denominated in U.S. dollars,
unless such holder elects to be paid in the Specified
Currency.
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. 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"). A Fixed Rate Note may pay a level amount in respect of
both interest and principal amortized over the life of the
Note (an "Amortizing 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. 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.
Fixed Rate Notes. Unless otherwise specified in the applicable
Pricing Supplement, interest on each Fixed Rate Note (other
than a Zero-Coupon Note or an Amortizing Note) will be payable
at Maturity and semi-annually each April 1 and October 1 (a
"Semi-Annual Pay Note" or, if annually, on October 1 of each
year (an "Annual Pay Note")) and at Maturity. Unless otherwise
specified in the applicable Pricing Supplement, principal of
and interest on each Amortizing Note will be payable at
Maturity and either
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quarterly on each January 1, April 1, July 1 and October 1, or
semi-annually on each April 1 and October 1. Payments with
respect to Amortizing Notes will be applied first to interest
due and payable thereon and then to the reduction of the
unpaid principal amount thereof. In the case of Fixed Rate
Notes (other than Global Notes) issued between a Regular
Record Date and an Interest Payment Date, the first interest
payment will be made on such Interest Payment Date to the
person to whom the Note originally was issued. 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. Unless otherwise specified in the applicable
Pricing Supplement, the Regular Record Date with respect to
any Interest Payment Date shall be the fifteenth day of the
calendar month next preceding such 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.
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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, 2001 to April 1, 2002 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, 2001 to April 1, 2002
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 applicable Pricing Supplement).
Interest on Floating Rate Notes will be calculated as
specified in the applicable pricing supplement. In the case of
Treasury Rate Notes or CMT Rate Notes, interest will be
calculated on the basis of the actual number of days in the
year.
Business Day: "Business Day" means, unless otherwise specified in the
applicable Pricing Supplement, any day, other than a Saturday
or Sunday, that meets each of the following applicable
requirements: such day is (a) not a day on which banking
institutions are authorized or required by law or regulation
to be closed in The City of New York, (b) if the Note is
denominated in a Specified Currency other than U.S. dollars or
Euro, not a day on which banking institutions are authorized
or required by law or regulation to close in the Principal
Financial Center of the country issuing the Specified Currency
and is a day on which banking institutions in such Principal
Financial Center are carrying out transactions in such
Specified Currency, (c) if the Note is denominated in Euro, a
day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer ("TARGET") System is open and (d)
with respect to LIBOR Notes, is also a London Banking Day.
"London Banking Day" means any day on which dealings in
deposits in the Indexed Currency 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, (and, with respect to any Amortizing
Notes, principal) 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
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& 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 (and, with respect to any Amortizing
Notes, principal) 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, 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 Citibank, N.A. or by wire
transfer to Citibank, N.A. The Company will confirm such
instructions in writing to the Trustee. Prior to 10:00 a.m.,
New York City time, on the date of
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Maturity or as soon as possible thereafter, the Trustee will
pay by separate wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC) to an
account at the Federal Reserve Bank of New York previously
specified by DTC, 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 responsible for
forwarding payments and materials directly to the beneficial
owner of such Note.
Procedure for
Rate Setting
and Posting: The Company and the Agents will discuss, from time to time,
the aggregate principal amount of, 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 Agents of the prices
and interest rates to be posted.
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, each 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 U.S.$5,000 principal amount of Notes will
be accepted.
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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
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 Agent that presented such offer (the "Presenting Agent")
and one copy to the Trustee. The Presenting Agent will cause a
Prospectus and Pricing Supplement to be delivered to the
purchaser of such Note.
In each instance that a Pricing Supplement is prepared, the
Agents will deliver the Pricing Supplement together with a
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.
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. The Company will make such deliveries with
respect to all Notes sold directly by the Company.
For each offer to purchase a Note solicited by an Agent and
accepted by or on behalf of the Company, the Presenting 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 Presenting 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 five 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.
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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 Presenting 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:
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. Indexed Currency, Denominated Currency, the
Base Exchange Rate and the Exchange Rate
Determination Date, if applicable;
8. Presenting Agent's commission determined
pursuant to Section IV(a) of the Selling
Agent Agreement;
9. Net proceeds to the Company;
10. Trade Date;
11. If a Note 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"),
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(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;
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,
(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. If the amount of principal or interest, or
both, payable on a Note will be determined
by reference to an index or formula, a full
description of such index or formula;
14. If a Discount Note, the total amount of
original issue discount, the yield to
maturity and the initial accrual period of
original issue discount;
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15. DTC Participant Number of the institution
through which the customer will hold the
beneficial interest in the Global Note; and
16. Such other terms as are necessary to
complete the applicable form of Note.
B. The Company will assign a CUSIP number to the Global
Note representing such Note and then advise the
Trustee and the Presenting 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 Agent. Each
such communication by the Company will be deemed to
constitute a representation and warranty by the
Company to the Trustee and the Agent 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 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 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 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 (and, with respect to any
Amortizing Note, principal) payable on such
Initial Interest Payment Date (which amount
shall have been confirmed by the Trustee).
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4. The CUSIP number of the Global Note
representing such Notes.
5. The frequency of interest (and, with respect
to any Amortizing Note, principal payments).
6. The frequency of interest rate resets.
7. Whether such Global Note represents any
other Notes issued or to be issued (to the
extent then known).
D. 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.
E. The Trustee will authenticate the Global Note
representing such Note and maintain possession of
such Global Note.
F. DTC will credit such Note to the participant account
of the Trustee maintained by DTC.
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
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 Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to the 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 Agent maintained by
DTC, in an amount equal to the price of the Note so
credited to their accounts.
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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 Citibank, N.A. 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 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.
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 an 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 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:
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Settlement
Procedure Time
--------- ----
A-B 12:00 p.m. on the Business Day before the
Settlement Date.
C 2:00 p.m. on the Business Day before the
Settlement Date.
D 5:00 p.m. on the Business Day before the
Settlement Date.
E 9:00 a.m. on the Settlement Date.
F 10:00 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.
J-K 5:00 p.m. on the Settlement Date.
M Daily.
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 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, and, 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
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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 Agency 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
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: Any decision to change the rate structure will require the
following actions:
Each time a decision has been reached to change rates, the
Company will promptly advise the Agents, who will forthwith
suspend solicitation of purchases of Notes at the prior rates.
The Agents will 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 Agent Agreements, 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.
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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
Agreements. Subject to the provisions of the Selling Agent
Agreements, 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.
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.
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EXHIBIT E
GENERAL MOTORS ACCEPTANCE CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
, 200_
General Motors Acceptance Corporation
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Attention: U.S. Borrowings
The undersigned agrees to purchase the following aggregate principal
amount of Notes:
$
The terms of such Notes shall be as follows:
Initial Public Offering Price:
Purchase Price: ____%
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:
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Interest Payment Dates:
Regular Record Dates:
Calculation Agent:
[Any other terms and conditions agreed
to by such Agent and the Company]
____________________________
[Name of Agent]
By:_________________________
Title:______________________
ACCEPTED:
GENERAL MOTORS ACCEPTANCE CORPORATION
By:________________________________
Title:_____________________________
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