EXHIBIT 1
GENERAL MOTORS ACCEPTANCE CORPORATION
$15,000,000,000
SMARTNOTES (SM)
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
, 2002
Dear Ladies and Gentlemen:
General Motors Acceptance Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell up to $15,000,000,000 aggregate principal
amount of its SmartNotes(SM) Due from Nine Months to Thirty Years from Date of
Issue (the "Notes") to be issued pursuant to the provisions of an Indenture
dated as of September 24, 1996, as supplemented from time to time, between the
Company and JPMorgan Chase Bank, as Trustee (the "Indenture"). The terms of the
Notes are described in the Prospectus referred to below.
Subject to the terms and conditions contained in this Selling Agent
Agreement (the "Agreement"), the Company hereby (1) appoints you as agent of the
Company ("Agent") for the purpose of soliciting purchases of the Notes from the
Company and you hereby agree to use your reasonable best efforts to solicit
offers to purchase Notes upon terms acceptable to the Company at such times and
in such amounts as the Company shall from time to time specify and in accordance
with the terms hereof, but the Company reserves the right to sell Notes directly
on its own behalf and, after consultation with ABN AMRO Financial Services, Inc.
(the "Purchasing Agent"), the Company reserves the right to enter into
agreements substantially identical hereto with other agents and (2) agrees that
whenever the Company determines to sell Notes pursuant to this Agreement, such
Notes shall be sold pursuant to a Terms Agreement relating to such sale in
accordance with the provisions of Section V hereof between the Company and the
Purchasing Agent with the Purchasing Agent purchasing such Notes as principal
for resale to others.
I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement No. xxx-xxxx relating to the Notes and
the offering thereof, from time to time, in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"). Such registration
statement has been declared effective by the Commission, and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Such registration statement and the prospectus filed pursuant
to Rule 424 under the Securities Act, including all documents incorporated
therein by reference, as from time to time amended or supplemented, including
any Pricing Supplement, are referred to herein as the "Registration Statement"
and the "Prospectus," respectively.
II.
Your obligations hereunder are subject to the following conditions, each of
which shall be met on such date as you and the Company shall subsequently fix
for the commencement of your obligations hereunder (the "Commencement Date"):
(a)(i) No litigation or proceeding shall be threatened or pending to
restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes and (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission and there shall have been no material adverse change not in the
ordinary course of business in the consolidated financial condition of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus; and you shall have received on the
Commencement Date a certificate dated such Commencement Date and signed by an
executive officer of the Company to the foregoing effect. The officer making
such certificate may rely upon the best of his knowledge as to proceedings
threatened.
(b) You shall have received a favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Esquire, Assistant General Counsel ("Counsel") of the Company, dated such
Commencement Date, to the effect that (i) the Company has been duly
incorporated, is validly existing as a corporation in good standing 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; (ii) the Indenture
has been duly authorized, executed and delivered by the Company and is a legal,
valid, binding and enforceable agreement of the Company and has been duly
qualified under the Trust Indenture Act; (iii) 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, will be entitled to the benefits of the Indenture and will be
legal, valid, binding and enforceable obligations of the Company; (iv) this
Agreement has been duly authorized, executed and delivered by the Company and is
a legal, valid, binding and enforceable obligation of the Company; provided that
Counsel's opinions in (ii), (iii) and (iv) hereof are subject as to enforcement
to the laws of bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles and that rights to indemnity hereunder may be limited by applicable
law in the United States; (v) no authorization, consent or approval of, or
registration or filing with, any governmental or public body or regulatory
authority in the United States is required on the part of the Company for the
issuance of the Notes in accordance with the Indenture or the sale of the Notes
in accordance with this Agreement other than the registration of the Notes under
the Securities Act, qualification of the Indenture under the Trust Indenture Act
and compliance with the securities or Blue Sky laws of various jurisdictions;
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(vi) the execution and delivery of the Indenture, the issuance of the Notes in
accordance with the Indenture and the sale of the Notes pursuant to this
Agreement do not and will not contravene any provision of applicable law or
result in any violation by the Company of any of the terms or provisions of the
Restated Organization Certificate or By-Laws of the Company, or any indenture,
mortgage or other agreement or instrument known to Counsel by which the Company
is bound; (vii) the statements in the Prospectus under "Description of Notes"
and "Plan of Distribution," insofar as such statements constitute a summary of
the documents or proceedings referred to therein, fairly present the information
called for with respect to such documents and proceedings; and (viii) Counsel
(1) is of the opinion that each document, if any, filed pursuant to the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") (except as to
financial statements contained therein, as to which Counsel need not express any
opinion) and incorporated by reference in the Prospectus complied when so filed
as to form in all material respects with the Exchange Act and the rules and
regulations thereunder, (2) is of the opinion that the Registration Statement
and Prospectus, as amended or supplemented, if applicable (except as to
financial statements contained therein, as to which Counsel need not express any
opinion), comply as to form in all material respects with the Securities Act and
the rules and regulations thereunder and (3) to the best of Counsel's knowledge
(except for the financial statements contained therein, as to which Counsel need
not express any belief) the Registration Statement and the Prospectus, as
amended or supplemented, filed with the Commission pursuant to the Securities
Act together with the information incorporated therein, do 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, in light of the
circumstances under which they were made, not misleading, provided that with
respect to (viii) above, Counsel may state that his opinion is based upon the
participation by one or more attorneys, who are members of his staff and report
to him and who participated in the preparation of the Registration Statement and
the Prospectus and the information incorporated therein by reference and review
and discussion of the contents thereof and upon his general review and
discussion of the answers made and information furnished therein with such
attorneys, certain officers of the Company and its auditors, but is without
independent check or verification except as stated therein.
(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
clauses (ii), (iii), (iv), (vii) and (viii)(2) and (3) of Section II(b).
The obligations of the Purchasing Agent to purchase Notes as principal,
both under this Agreement and under any Terms Agreement (as defined in Section V
hereof) are subject to the conditions that (i) no litigation or proceeding shall
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be threatened or pending to restrain or enjoin the issuance or delivery of the
Notes, or which in any way questions or affects the validity of the Notes, (ii)
no stop order suspending the effectiveness of the Registration Statement shall
be in effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission and (iii) there shall have been no material adverse
change not in the ordinary course of business in the consolidated financial
condition of the Company and its subsidiaries, taken as a whole, from that set
forth in the Registration Statement and the Prospectus, each of which conditions
shall be met on the corresponding Settlement Date. Further, only if specifically
called for by any written agreement by the Purchasing Agent to purchase Notes as
principal, the Purchasing Agent's obligations hereunder and under such
agreement, shall be subject to such of the additional conditions set forth in
clauses (a), as it relates to the executive officer's certificate, and clauses
(b), (c) and (d) above, as agreed to by the parties, each of which such agreed
conditions shall be met on the corresponding Settlement Date.
III.
In further consideration of your agreements herein contained, the Company
covenants as follows:
(a) To furnish to you, without charge, a copy of (i) the Indenture, (ii)
the resolutions of the Board of Directors (or Executive Committee) of the
Company authorizing the issuance and sale of the Notes, certified by the
Secretary or Assistant Secretary of the Company as having been duly adopted,
(iii) the Registration Statement including exhibits and materials incorporated
by reference therein and (iv) as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus (other than amendments or supplements to change interest rates), to
furnish you a copy of each such proposed amendment or supplement.
(c) To furnish you copies of each amendment to the Registration Statement
and of each amendment and supplement to the Prospectus in such quantities as you
may from time to time reasonably request; and if at any time when the delivery
of a Prospectus shall be required by law in connection with sales of any of the
Notes, either (i) any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact, or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading or (ii) for any other reason it shall be necessary to amend
or supplement the latest Prospectus, as then amended or supplemented, or to file
under the Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, the Company will
(A) notify you to suspend the solicitation of offers to purchase Notes and if
notified by the Company, you shall forthwith suspend such solicitation and cease
using the Prospectus as then amended or supplemented and (B) promptly prepare
and file with the Commission such document incorporated by reference in the
Prospectus or an amendment or supplement to the Registration Statement or the
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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.
(e) The Company will make generally available to its security holders and
to you as soon as practicable earning statements that satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Securities Act) of the
Registration Statement with respect to each sale of Notes. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(f) To use its reasonable efforts, in cooperation with the Purchasing
Agent, to cause such Notes as the Company and the Purchasing Agent agree to be
accepted for listing on any stock exchange (each, a "Stock Exchange"), in each
case as the Company and the Purchasing Agent shall deem to be appropriate. In
connection with any such agreement to qualify Notes for listing on a Stock
Exchange, the Company shall use its reasonable efforts to obtain such listing
promptly and shall furnish any and all documents, instruments, information and
undertakings that may be necessary or advisable in order to obtain and maintain
the listing.
IV.
(a) You propose to solicit purchases of the Notes upon the terms and
conditions set forth herein and in the Prospectus and upon the terms
communicated to you from time to time by the Company. For the purpose of such
solicitation you will use the Prospectus as then amended or supplemented which
has been most recently distributed to you by the Company, and you will solicit
purchases only as permitted or contemplated thereby and herein and will solicit
purchases of the Notes only as permitted by the Securities Act and the
applicable securities laws or regulations of any jurisdiction. The Company
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reserves the right, in its sole discretion, to suspend solicitation of purchases
of the Notes commencing at any time for any period of time or permanently. Upon
receipt of instructions (which may be given orally) from the Company, you will
forthwith suspend solicitation of purchases until such time as the Company has
advised you that such solicitation may be resumed.
You are authorized to solicit orders for the Notes only in denominations of
$1,000 or more (in multiples of $1,000). You are not authorized to appoint
subagents or to engage the service of any other broker or dealer in connection
with the offer or sale of the Notes without the consent of the Company. Unless
authorized by the Purchasing Agent in each instance, each Agent agrees not to
purchase and sell Notes for which an order from a client has not been received.
In addition, unless otherwise instructed by the Company, the Purchasing Agent
shall communicate to the Company, orally or in writing, each offer to purchase
Notes. The Company shall have the sole right to accept offers to purchase Notes
offered through you and may reject any proposed purchase of Notes as a whole or
in part. You shall have the right, in your discretion reasonably exercised, to
reject any proposed purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of your agreements contained herein.
Unless otherwise agreed between the Company and the Purchasing Agent, the
Company agrees to pay the Purchasing Agent, as consideration for soliciting the
sale of the Notes pursuant to a Terms Agreement, a concession in the form of a
discount equal to the percentages of the initial offering price of each Note
sold as set forth in Exhibit A hereto (the "Concession"); provided, however,
that the Concession shall not exceed the amounts set forth in the Prospectus.
The Purchasing Agent and the other Agents will share the above-mentioned
Concession in such proportions as they and the Company may agree.
Unless otherwise authorized by the Company, all Notes shall be sold to the
public at a purchase price not to exceed 100% of the principal amount thereof,
plus accrued interest, if any. We may also issue Notes that bear a zero
interest rate and are issued at a substantial discount from the principal amount
payable at the Maturity Date (a "Zero-Coupon Note"). Such Zero-Coupon Notes
shall be sold to the public at a purchase price no greater than an amount,
expressed as a percentage of the principal face amount of such Notes, equal to
the net proceeds to the Company on the sale of such Notes, plus the Concession,
plus accrued interest, if any. The actual purchase price paid by investors for
any Note shall be determined by prevailing market prices at the time of
purchase. Such purchase price shall be set forth in the confirmation statement
of the Selling Group member responsible for such sale, and delivered to the
purchaser along with a copy of the Prospectus (if not previously delivered) and
Pricing Supplement.
(b) Procedural details relating to the issue and delivery of, and the
solicitation of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit B (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
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amended from time to time. The Procedures may only be amended by written
agreement of the Company and you.
(c) You are aware that other than registering the Notes under the
Securities Act, no action has been or will be taken by the Company that would
permit the offer or sale of the Notes or possession or distribution of the
Prospectus or any other offering material relating to the Notes in any
jurisdiction where action for that purpose is required. Accordingly, you agree
that you will observe all applicable laws and regulations in each jurisdiction
in or from which you may directly or indirectly acquire, offer, sell or deliver
Notes or have in your possession or distribute the Prospectus or any other
offering material relating to the Notes and you will obtain any consent,
approval or permission required by you for the purchase, offer or sale by you of
Notes under the laws and regulations in force in any such jurisdiction to which
you are subject or in which you make such purchase, offer or sale. Neither the
Company nor any other Agent shall have any responsibility for determining what
compliance is necessary by you or for your obtaining such consents, approvals or
permissions. You further agree that you will take no action that will impose any
obligations on the Company or the other Agents. Subject as provided above, you
shall, unless prohibited by applicable law, furnish to each person to whom you
offer, sell or deliver Notes a copy of the Prospectus (as then amended or
supplemented) or (unless delivery of the Prospectus is required by applicable
law) inform each such person that a copy thereof (as then amended or
supplemented) will be made available upon request. You are not authorized to
give any information or to make any representation not contained in the
Prospectus or the documents incorporated by reference or specifically referred
to therein in connection with the offer and sale of the Notes.
(d) GMAC shall be responsible for the contents of its website
▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇.
V.
Each sale of Notes shall be made in accordance with the terms of this
Agreement and a separate agreement to be entered into which will provide for the
sale of such Notes to, and the purchase and reoffering thereof, by the
Purchasing Agent as principal. Each such separate agreement (which may be an
oral agreement and confirmed in writing as described below between the
Purchasing Agent and the Company) is herein referred to as a "Terms Agreement".
A Terms Agreement may also specify certain provisions relating to the reoffering
of such Notes by the Purchasing Agent. The Purchasing Agent's agreement to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations, warranties and agreements of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement, whether oral (and confirmed in writing which may be
by facsimile transmission) or in writing, shall describe the Notes to be
purchased pursuant thereto by the Purchasing Agent as principal, and may
specify, among other things, the principal amount of Notes to be purchased, the
interest rate or formula and maturity date or dates of such Notes, the interest
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payment dates, if any, the price to be paid to the Company for such Notes, the
initial public offering price at which the Notes are proposed to be reoffered,
and the time and place of delivery of and payment for such Notes (the
"Settlement Date"), whether the Notes provide for a Survivor's Option or for
optional redemption by the Company and on what terms and conditions, and any
other relevant terms. In connection with the resale of the Notes purchased,
without the consent of the Company you are not authorized to appoint subagents
or to engage the service of any other broker or dealer, nor may you reallow any
portion of the discount paid to you by the Company; provided, however, you may
offer Notes you have purchased as principal to any NASD dealer in good standing
at a discount and unless otherwise specified in the applicable pricing
supplement, such discount allowed to any dealer shall not, during the
distribution of the Notes, be in excess of the discount to be received by you
from the Purchasing Agent. Terms Agreements, each of which shall be
substantially in the form of Exhibit C hereto, or as otherwise agreed to between
the Company and the Purchasing Agent, may take the form of an exchange of any
standard form of written telecommunication between the Purchasing Agent and the
Company.
VI.
The Company represents and warrants to the Agents that as of each date on
which the Company accepts an offer to purchase Notes (including any purchase by
the Purchasing Agent as principal, pursuant to a Terms Agreement or otherwise),
as of each date the Company issues and sells Notes and as of each date the
Registration Statement or the Prospectus is amended or supplemented: (i) each
document, if any, filed, or to be filed, pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied when so filed, or will
comply, in all material respects with such Act and the rules and regulations
thereunder; (ii) the Registration Statement (including the documents
incorporated by reference therein), filed with the Commission pursuant to the
Securities Act relating to the Notes, when it became effective, did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (iii) each Prospectus, if any, filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with such Act
and the applicable rules and regulations thereunder; (iv) the Registration
Statement and each Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations thereunder; and (v) the Registration Statement
and each Prospectus relating to the Notes do not and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; (vi) that (a) no litigation or proceeding shall be threatened or
pending to restrain or enjoin the issuance or delivery of the Notes, or which in
any way questions or affects the validity of the Notes and (b) no stop order
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceedings for such purpose shall be pending before or threatened by the
Commission and there shall have been no material adverse change not in the
ordinary course of business in the consolidated financial condition of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus, each of which conditions shall be met
on the corresponding Settlement Date; (vii) no authorization, consent or
approval of, or registration or filing with, any governmental or public body or
regulatory authority in the United States is required on the part of the Company
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for the issuance of the Notes in accordance with the Indenture or the sale of
the Notes in accordance with this Agreement other than the registration of the
Notes under the Securities Act, qualification of the Indenture under the Trust
Indenture Act and compliance with the securities or Blue Sky laws of various
jurisdictions; and (viii) the execution and delivery of the Indenture, the
issuance of the Notes in accordance with the Indenture and the sale of the Notes
pursuant to this Agreement do not and will not contravene any provision of
applicable law or result in any violation by the Company of any of the terms or
provisions of the Certificate of Incorporation or By-Laws of the Company, or any
indenture, mortgage or other agreement or instrument by which the Company is
bound. The above representations and warranties shall not apply to any
statements or omissions made in the Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by you expressly
for use therein. Each acceptance by the Company of an offer for the purchase of
Notes and each issuance of Notes shall be deemed an affirmation by the Company
that the foregoing representations and warranties are true and correct at the
time, as the case may be, of such acceptance or of such issuance, in each case
as though expressly made at such time. The representations, warranties and
covenants of the Company shall survive the execution and delivery of this
Agreement and the issuance and sale of the Notes.
Each time the Registration Statement shall be amended by the filing of a
post-effective amendment with the Commission, or the filing by the Company of a
Form 10-K or Form 10-Q pursuant to Section 13 of the Exchange Act, or, if so
agreed in connection with a particular transaction, the Company shall furnish
the Agents with (1) a written opinion, dated the date of such amendment, filing
, or as otherwise agreed, of counsel to the Company, in substantially the form
previously delivered under Section II(b), but modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended or supplemented at
such date; (2) a letter, dated the date of such amendment, filing, or as
otherwise agreed, of Deloitte & Touche LLP, independent auditors, in
substantially the form previously delivered under Section II(c), but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended or supplemented at such date; and (3) a certificate, dated the date of
such amendment, filing, or as otherwise agreed and signed by an executive
officer of the Company, in substantially the form previously delivered under
Section II(a), but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented at such date.
VII.
The Company agrees to indemnify and hold harmless you, each person, if any,
who controls (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) you and each of your and such person's officers
and directors against any and all losses, liabilities, costs or claims (or
actions in respect thereof) to which any of them may become subject (including
all reasonable costs of investigating, disputing or defending any such claim or
action), insofar as such losses, liabilities, costs or claims (or actions in
respect thereof) arise out of or in connection with any untrue statement or
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alleged untrue statement of a material fact contained in the Registration
Statement or any Prospectus, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading
provided: (i) that the Company shall not be liable for any such loss, liability,
cost, action or claim arising from any statements or omissions made in reliance
on and in conformity with written information provided by you to the Company
expressly for use in the Registration Statement or Prospectus or any amendment
or supplement thereto; and (ii) that the Company shall not be liable to you or
any person controlling you with respect to the Prospectus to the extent any such
loss, liability, cost, action or claim to you or such controlling person results
from the fact that you sold Notes to a person to whom there was not sent or
given, at or prior to the earlier of either the mailing or delivery of the
written confirmation of such sale or the delivery of such Notes to such person,
a copy of the Prospectus as then amended or supplemented, if the Company has
previously furnished copies thereof to you.
Each Agent (including the Purchasing Agent) severally agrees to indemnify
and hold harmless the Company, each person, if any, who controls (within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act), the Company, and the Company's and such person's officers and directors
from and against any and all losses, liabilities, costs or claims (or actions in
respect thereof) to which any of them may become subject (including all
reasonable costs of investigating, disputing or defending any such claim or
action), insofar as such losses, liabilities, costs or claims (or actions in
respect thereof) arise out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus, or any amendment or supplement thereto, or any omission
or alleged omission to state therein a material fact necessary to make the
statements therein not misleading, in each case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the section of the Prospectus entitled "Plan of Distribution" or any
amendment or supplement thereto in reliance on and in conformity with written
information furnished to the Company by you expressly for use therein.
Each Agent (including the Purchasing Agent) severally agrees to indemnify
and hold harmless the Company, the Purchasing Agent, each director and officer
of the Company or of the Purchasing Agent, and each person, if any, who controls
(within the meaning of Section 15 of the Securities Act) the Company against any
and all losses, claims, damages, liabilities, expenses, actions and demands to
which they or any of them may become subject (including all reasonable costs of
investigating, disputing or defending any such claim, action or demand) under
the law of any jurisdiction or which may be made against them arising out of, or
in connection with the breach of such Agent (including the Purchasing Agent) of
any of the terms, conditions, agreements and representations of Section IV of
the Agreement.
If any claim, demand, action or proceeding (including any governmental
investigation) shall be brought or alleged against an indemnified party in
respect of which indemnity is to be sought against an indemnifying party
pursuant to the preceding paragraphs, the indemnified party shall promptly
notify the indemnifying party in writing, and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
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to the indemnified party to represent the indemnified party and any others the
indemnified party may designate in such proceeding and shall pay the reasonable
fees and expenses of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the indemnifying party has failed within a reasonable time to retain
counsel reasonably satisfactory to such indemnified party or (iii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is agreed that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate law firm (in addition to local counsel where necessary) for all such
indemnified parties. Such firm shall be designated in writing by the indemnified
party. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
The indemnity agreements contained in this Section 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.
-11-
IX.
This Agreement shall be terminated at any time by either party hereto upon
the giving of five business days written notice of such termination to the other
party hereto. In the event of any such termination, neither party shall have any
liability to the other party hereto, except for obligations hereunder which
expressly survive the termination of this Agreement and except that, if at the
time of termination an offer for the purchase of Notes shall have been accepted
by the Company but the time of delivery to the purchaser or his agent of the
Note or Notes relating thereto shall not yet have occurred, the Company shall
have the obligations provided herein with respect to such Note or Notes.
Unless specifically set forth in a Terms Agreement, a Terms Agreement shall
not be subject to termination. The termination of this Agreement shall not
require termination of any agreement by the Purchasing Agent to purchase Notes
as principal, and the termination of any Terms Agreement shall not require
termination of this Agreement.
If this Agreement is terminated, the last sentence of the second paragraph
of Section IV(a), Section III(c), (d) and (e), Section VII, and the first
paragraph of Section XIV shall survive; provided that if at the time of
termination of this Agreement an offer to purchase Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such Notes
has not occurred, the provisions of Section III(a) and (b), Section IV(b) and
Section V shall also survive until time of delivery.
X.
Except as otherwise specifically provided herein, all statements, requests,
notices and advices hereunder shall be in writing, or by telephone if promptly
confirmed in writing, and if to you shall be sufficient in all respects if
delivered in person or sent by telex, facsimile transmission (confirmed in
writing), or registered mail to you at your address, telex or telecopier number
set forth below by your signature and if to the Company shall be sufficient in
all respects if delivered or sent by telecopier or registered mail to the
Company at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopier number
▇▇▇-▇▇▇-▇▇▇▇, marked for the attention of the Secretary. All such notices shall
be effective on receipt.
XI.
This Agreement shall be binding upon you and the Company, and inure solely
to the benefit of you and the Company and any other person expressly entitled to
indemnification hereunder and the respective personal representatives,
successors and assigns of each, and no other person shall acquire or have any
rights under or by virtue of this Agreement.
-12-
XII.
This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of New York. Each party to this Agreement
irrevocably agrees that any legal action or proceeding against it arising out of
or in connection with this Agreement or for recognition or enforcement of any
judgment rendered against it in connection with this Agreement may be brought in
any Federal or New York State court sitting in the Borough of Manhattan, and, by
execution and delivery of this Agreement, such party hereby irrevocably accepts
and submits to the jurisdiction of each of the aforesaid courts in personam,
generally and unconditionally with respect to any such action or proceeding for
itself and in respect of its property, assets and revenues. Each party hereby
also irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any such action or
proceeding brought in any such court and any claim that any such action or
proceeding has been brought in an inconvenient forum.
XIII.
If this Agreement is executed by or on behalf of any party, such person
hereby states that at the time of the execution of this Agreement he has no
notice of revocation of the power of attorney by which he has executed this
Agreement as such attorney.
XIV.
The Company will pay the expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing of
the Registration Statement; (ii) the preparation, issuance and delivery of the
Notes; (iii) the fees and disbursements of the Company's auditors, of the
Trustee and its counsel and of any paying or other agents appointed by the
Company; (iv) the printing and delivery to you in quantities as hereinabove
stated of copies of the Registration Statement and the Prospectus; (v) the
reasonable fees and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Agents (including "Blue Sky" fees and disbursements; (vi) if the Company lists
Notes on a securities exchange, the costs and fees of such listing; and (vii)
any fees charged by rating agencies for the rating of the Notes.
This Agreement may be executed by each of the parties hereto in any number
of counterparts, and by each of the parties hereto on separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Company and you.
-13-
Very truly yours,
GENERAL MOTORS ACCEPTANCE CORPORATION
By:___________________________________
Title:________________________________
Confirmed and accepted as of the date first above written:
-14-
EXHIBIT A
SMARTNOTES (SM)
GMAC
DEALER AGENT PROGRAM
The following Concessions are payable as a percentage of the non-discounted
Price to Public of each Note sold through the Purchasing Agent.
9 months to less than 23 months . . . . . . . . . . 0.200%
23 months to less than 35 months. . . . . . . . . . 0.400%
35 months to less than 47 months. . . . . . . . . . 0.625%
47 months to less than 59 months. . . . . . . . . . 0.750%
59 months to less than 71 months. . . . . . . . . . 1.000%
71 months to less than 83 months. . . . . . . . . . 1.100%
83 months to less than 95 months. . . . . . . . . . 1.200%
95 months to less than 107 months . . . . . . . . . 1.300%
107 months to less than 119 months. . . . . . . . . 1.400%
119 months to less than 131 months. . . . . . . . . 1.500%
131 months to less than 143 months. . . . . . . . . 1.600%
143 months to less than 179 months. . . . . . . . . 1.750%
179 months to less than 239 months. . . . . . . . . 2.000%
239 months to 360 months. . . . . . . . . . . . . . 2.500%
-15-
EXHIBIT B
GENERAL MOTORS ACCEPTANCE CORPORATION
$15,000,000,000
SMARTNOTES(SM)
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
SmartNotes(SM), Due from Nine Months to Thirty Years from Date of Issue are
offered on a continuing basis by General Motors Acceptance Corporation. The
Notes will be offered by ABN AMRO Financial Services, Inc. (the "Purchasing
Agent"), ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇ & Co., L.P., Fidelity Capital
Markets, a division of National Financial Services LLC, ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Prudential
Securities Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc., and
UBS ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.(collectively, the "Agents") pursuant to a Selling Agent
Agreement among the Company and the Agents dated as of the date hereof (the
"Selling Agreement") and one or more terms agreements substantially in the form
attached to the Selling Agreement as Exhibit C (each a "Terms Agreement"). The
Notes are being resold by the Purchasing Agent (and by any Agent that purchases
them from the Purchasing Agent) to (i) customers of the Agents or (ii) selected
broker-dealers (the "Selling Group") for distribution to their customers
pursuant to a Master Selected Dealer Agreement (a "Dealer Agreement") attached
hereto substantially in the representative form of Exhibit E. The Agents have
agreed to use their reasonable best efforts to solicit purchases of the Notes.
The Notes will be unsecured and unsubordinated debt and have been registered
with the Securities and Exchange Commission (the "Commission"). JPMorgan Chase
Bank is the trustee (the "Trustee") under an Indenture dated as of September 24,
1996, as amended from time to time, between the Company and the Trustee (the
"Indenture") covering the Notes. Pursuant to the terms of the Indenture,
JPMorgan Chase Bank also will serve as authenticating agent, issuing agent and
paying agent.
Each tranche of Notes will be issued in book-entry form ("Notes") and
represented by one or more fully registered global notes without coupons (each,
a "Global Note") held by the Trustee, as agent for the Depository Trust
Corporation ("DTC") and recorded in the book-entry system maintained by DTC.
Each Global Note will have the annual interest rate, maturity and other terms
set forth in the relevant Pricing Supplement (as defined in the Selling
Agreement). Owners of beneficial interests in a Global Note will be entitled to
physical delivery of Notes issued in certificated form equal in principal amount
to their respective beneficial interests only upon certain limited circumstances
described in the Indenture.
-16-
Administrative procedures and specific terms of the offering are explained
below. Administrative responsibilities will be handled for the Company by its
Borrowings Department; accountable document control and record-keeping
responsibilities will be performed by its Controller's Department. The Company
will advise the Agents and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agents and the Trustee are to
communicate regarding offers to purchase Notes and the details of their
delivery.
Notes will be issued in accordance with the administrative procedures set forth
in herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the Indenture, the Selling Agent
Agreements or the Prospectus and the Pricing Supplement (together, the
"Prospectus"), the relevant provisions of the Notes, the Indenture, the Selling
Agent Agreements and the Prospectus shall control. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Selling Agent Agreement, the Prospectus in the form most recently filed with the
Commission pursuant to Rule 424 of the Securities Act, or in the Indenture.
Administrative Procedures for Notes
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated September 24, 1996, and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated March 10, 1989,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). The procedures set forth below may be modified in
compliance with DTC's then-applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the "Maturity Date")
not less than nine months after the date of delivery
by the Company of such Note. Notes will mature on any
date selected by the initial purchaser and agreed to
by the Company. "Maturity" when used with respect to
any Note, means the date on which the outstanding
principal amount of such Note becomes due and payable
in full in accordance with its terms, whether at its
Maturity Date or by declaration of acceleration, call
for redemption, repayment or otherwise.
Issuance: All Notes having the same terms will be represented
initially by a single Global Note. Each Global Note
will be dated and issued as of the date of its
authentication by the Trustee.
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.
-17-
Each Global Note will bear an original issue date
(the "Original Issue Date"). The Original Issue Date
shall remain the same for all Notes subsequently
issued upon transfer, exchange or substitution of an
original Note regardless of their dates of
authentication.
Identification
Numbers: The Company has received from the CUSIP Service
Bureau (the "CUSIP Service Bureau") of Standard &
Poor's Corporation ("Standard & Poor's") one series
of CUSIP numbers consisting of approximately 900
CUSIP numbers for future assignment to Global Notes.
The Company will provide DTC and the Trustee with a
list of such CUSIP numbers. The Company will assign
CUSIP numbers as described below under Settlement
Procedure "B". DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Company has assigned to Global Notes. The Company
will reserve additional CUSIP numbers when necessary
for assignment to Global Notes and will provide the
Trustee and DTC with the list of additional CUSIP
numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes will
be issued only in fully registered form without
coupons. Each Global Note will be registered in the
name of Cede & Co., as nominee for DTC, on the Note
Register maintained under the Indenture by the
Trustee. The beneficial owner of a Note (or one or
more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC
(with respect to such Note, the "Participants") to
act as agent or agents for such owner in connection
with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such beneficial owner of such
Note in the account of such Participants. The
ownership interest of such beneficial owner in such
Note will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in
DTC.
Transfers: Transfers of interests in a Global Note will be
accomplished by book entries made by DTC and, in
turn, by Participants (and in certain cases, one or
more indirect participants in DTC) acting on behalf
of beneficial transferors and transferees of such
interests.
Exchanges: The Trustee, at the Company's request, may deliver
to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (a) the
CUSIP numbers of two or more Global Notes
-18-
outstanding on such date that represent Notes having
the same terms or (except that Issue Dates need not
be the same) and for which interest, if any, has been
paid to the same date and which otherwise constitute
Notes of the same series and tenor under the
Indenture, (b) a date, occurring at least 30 days
after such written notice is delivered and at least
30 days before the next Interest Payment Date, if
any, for the related Notes, on which such Global
Notes shall be exchanged for a single replacement
Global Note; and (c) a new CUSIP number, obtained
from the Company, to be assigned to such replacement
Global Note. Upon receipt of such a notice, DTC will
send to its participants (including the Issuing
Agent) and the Trustee a written reorganization
notice to the effect that such exchange will occur on
such date. Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service Bureau
written notice setting forth such exchange date and
the new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global Notes
to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange
such Global Notes for a single Global Note bearing
the new CUSIP number and the CUSIP numbers of the
exchanged Global Notes will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the
foregoing, if the Global Notes to be exchanged exceed
$500,000,000 in aggregate principal or face amount,
one replacement Global Note will be authenticated and
issued to represent each $500,000,000 of principal or
face amount of the exchanged Global Notes and an
additional Global Note will be authenticated and
issued to represent any remaining principal amount of
such Global Notes (See "Denominations" below).
Denominations: Notes will be issued in denominations of $1,000 or
more (in multiples of $1,000). Global Notes will be
denominated in principal or face amounts not in
excess of $500,000,000. If one or more Notes having
an aggregate principal or face amount in excess of
$500,000,000 would, but for the preceding sentence,
be represented by a single Global Note, then one
Global Note will be issued to represent each
$500,000,000 principal or face amount of such Note or
Notes and an additional Global Note will be issued to
represent any remaining principal amount of such Note
or Notes. In such case, each of the Global Notes
representing such Note or Notes shall be assigned the
same CUSIP number.
Issue Price: Unless otherwise specified in an applicable Pricing
Supplement, each Note will be issued at the
percentage of principal amount specified in the
Prospectus relating to such Note.
-19-
Interest: General. Unless otherwise specified in the
applicable pricing supplement, each Note will bear
interest at a fixed rate, 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. Interest on each Note will accrue from the
Issue Date of such Note for the first interest period
and from the most recent Interest Payment Date to
which interest has been paid for all subsequent
interest periods. Except as set forth hereafter, each
payment of interest on a Note will include interest
accrued to but excluding, as the case may be, the
Interest Payment Date or the date of Maturity (other
than a Maturity Date of a Note occurring on the 31st
day of a month in which case such payment of interest
will include interest accrued to but excluding the
30th day of such month). Any payment of principal,
premium or interest required to be made on a day that
is not a Business Day (as defined below) may be made
on the next succeeding Business Day 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.
Each Note will bear interest from and including its
Issue Date at the rate per annum set forth thereon
and in the applicable Pricing Supplement until the
principal amount thereof is paid, or made available
for payment, in full. Unless otherwise specified in
the applicable Pricing Supplement, interest on each
Note (other than a Zero-Coupon Note) will be payable
either monthly, quarterly, semi-annually or annually
on each Interest Payment Date and at Maturity (or on
the date of redemption or repayment if a Note is
repurchased by the Company prior to maturity pursuant
to mandatory or optional redemption provisions or the
Survivor's Option). Interest will be payable to the
person in whose name a Note is registered at the
close of business on the Regular Record Date next
preceding each Interest Payment Date; provided,
however, interest payable at Maturity, on a date of
redemption or in connection with the exercise of the
Survivor's Option will be payable to the person to
whom principal shall be payable.
Any payment of principal, and premium, if any, or
interest required to be made on a Note on a day which
is not a Business Day need not be made on such day,
but may be made on the next succeeding Business Day
with the same force and effect as if made on such
-20-
day, and no additional interest shall accrue as a
result of such delayed payment. Unless otherwise
specified in the applicable Pricing Supplement, any
interest on the Notes will be computed on the basis
of a 360-day year of twelve 30-day months. The
interest rates the Company will agree to pay on
newly-issued Notes are subject to change without
notice by the Company from time to time, but no such
change will affect any Notes already issued or as to
which an offer to purchase has been accepted by the
Company.
The Interest Payment Dates for a Note that provides
for monthly interest payments shall be the fifteenth
day of each calendar month (or the next Business
Day), commencing in the calendar month that next
succeeds the month in which the Note is issued. In
the case of a Note that provides for quarterly
interest payments, the Interest Payment Dates shall
be the fifteenth day of each third month (or the next
Business Day), commencing in the third succeeding
calendar month following the month in which the Note
is issued. In the case of a Note that provides for
semi-annual interest payments, the Interest Payment
dates shall be the fifteenth day of each sixth month
(or the next Business Day), commencing in the sixth
succeeding calendar month following the month in
which the Note is issued. In the case of a Note that
provides for annual interest payments, the Interest
Payment Date shall be the fifteenth day of every
twelfth month (or the next Business Day), commencing
in the twelfth succeeding calendar month following
the month in which the Note is issued. The Regular
Record Date with respect to any Interest Payment Date
shall be the first day of the calendar month in which
such Interest Payment Date occurred, except that the
Regular Record Date with respect to the final
Interest Payment Date shall be the final Interest
Payment Date.
Each payment of interest on a Note shall include
accrued interest from and including the Issue Date or
from and including the last day in respect of which
interest has been paid (or duly provided for), as the
case may be, to, but excluding, the Interest Payment
Date or Maturity Date, as the case may be.
Calculation
of Interest: Interest on the Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve 30-day months. (Examples of interest
calculations are as follows: October 1, 2002 to April
1, 2003 equals 6 months and 0 days, or 180 days; the
interest paid equals 180/360 times the annual rate of
interest times the principal amount of the Note. The
period from December 3, 2002 to April 1, 2003 equals
3 months and 28 days, or 118 days; the interest
payable equals 118/360 times the annual rate of
interest times the principal amount of the Note.)
-21-
Business Day: "Business Day" means, unless otherwise specified in
the applicable Pricing Supplement, any day, other
than a Saturday or Sunday, that meets the following
applicable requirement: such day is not a day on
which banking institutions are authorized or required
by law, regulation or executive order to be closed in
the City of New York.
Payments of
Principal and
Interest: Payments of Principal and Interest. Promptly after
each Regular Record Date, the Trustee will deliver to
the Company and DTC a written notice specifying by
CUSIP number the amount of interest, if any, to be
paid on each Global Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with a Maturity Date) and the total of
such amounts. DTC will confirm the amount payable on
each Global Note on such Interest Payment Date by
reference to the daily bond reports published by
Standard & Poor's. On such Interest Payment Date, the
Company will pay to the Trustee, and the Trustee in
turn will pay to DTC, such total amount of interest
due (other than on the Maturity Date), at the times
and in the manner set forth below under "Manner of
Payment". If any Interest Payment Date for any Note
is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and
no interest shall accrue on such payment for the
period from and after such Interest Payment Date.
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
-22-
the principal and interest due on the Maturity Date
of such Global Note and all other Notes represented
by such Global Note, the Trustee will cancel and
destroy such Global Note in accordance with the
Indenture and so advise the Company.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Global Notes on
any Interest Payment Date or at Maturity shall be
paid by the Company to the Trustee in immediately
available funds on such date. The Company will make
such payment on such Global Notes by instructing the
Trustee to withdraw funds from an account maintained
by the Company with JPMorgan Chase Bank, by wire
transfer to JPMorgan Chase Bank or as otherwise
agreed with the Trustee. The Company will confirm
such instructions in writing to the Trustee. Prior to
10:00 a.m., New York City time, on the Maturity Date
or as soon as possible thereafter, the Trustee will
make payment to DTC in accordance with existing
arrangements between DTC and the Trustee, in funds
available for immediate use by DTC, each payment of
interest, principal and premium, if any, due on a
Global Note on such date. On each Interest Payment
Date (other than on the Maturity Date) the Trustee
will pay DTC such interest payments in same-day funds
in accordance with existing arrangements between the
Trustee and DTC. Thereafter, on each such date, DTC
will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants with payments in amounts proportionate
to their respective holdings in principal amount of
beneficial interest in such Global Note as are
recorded in the book-entry system maintained by DTC.
Neither the Company nor the Trustee shall have any
direct responsibility or liability for the payment by
DTC of the principal of, or premium, if any, or
interest on, the Notes to such Participants.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Note will be determined and withheld by
the Participant, indirect participant in DTC or other
person in the chain of payment that is responsible
for withholding such tax under applicable law.
Procedure for
Rate Setting
and Posting: The Company and the Purchasing Agent will discuss,
from time to time, the aggregate principal amounts
of, the Maturities, the Issue Price and the interest
rates to be borne by Notes that may be sold as a
result of the solicitation of orders by the Agents.
If the Company decides to set interest rates borne by
-23-
any Notes in respect of which the Agents are to
solicit orders (the setting of such interest rates to
be referred to herein as "Posting") or if the Company
decides to change interest rates previously posted by
it, it will promptly advise the Purchasing Agent of
the prices and interest rates to be posted. The
Purchasing Agent in turn will advise the Agents and
Selling Group Members.
The Company will assign a separate CUSIP number for
each tranche of Notes to be posted, and will so
advise and notify the Trustee and Purchasing Agent of
said assignment by telephone and/or by telecopier or
other form of electronic transmission. The Purchasing
Agent will, in turn, include the assigned CUSIP
number on all Posting notices communicated to the
Agents and Selling Group members.
Offering of Notes: In the event that there is a Posting, the Purchasing
Agent will communicate to each of the Agents and
Selling Group members the aggregate principal amount
and Maturities of, along with the interest rates to
be borne by, each tranche of Notes that is the
subject of the Posting. Thereafter, the Purchasing
Agent, along with the other Agents and the Selling
Group, will solicit offers to purchase the Notes
accordingly.
Purchase of Notes
by the Purchasing
Agent: Unless otherwise agreed by the Company and the
Purchasing Agent, the Purchasing Agent will, no later
than 4:00 p.m. (New York City time) on the sixth day
subsequent to the day on which such Posting occurs,
or if such sixth day is not a day on which commercial
banks in New York City are not required or authorized
to be in operation (not a "Business Day"), on the
preceding Business Day, or on such other Business Day
and time as shall be mutually agreed upon by the
Company and the Agents (any such day, a "Trade Day"),
(i) complete, execute and deliver to the Company a
Terms Agreement that sets forth, among other things,
the amount of each tranche that the Purchasing Agent
is offering to purchase or (ii) inform the Company
that none of the Notes of a particular tranche will
be purchased by the Purchasing Agent.
Acceptance
and Rejection
of Orders: Unless otherwise agreed by the Company and the
Agents, the Company has the sole right to accept
orders to purchase Notes and may reject any such
order in whole or in part. Unless otherwise
instructed by the Company, the Purchasing Agent will
promptly advise the Company by telephone of all
offers to purchase Notes received by it, other than
those rejected by it in whole or in part in the
reasonable exercise of its discretion. No order for
less than $1,000 principal amount of Notes will be
accepted.
-24-
Upon receipt of a completed and executed Terms
Agreement from the Purchasing Agent, the Company will
(i) promptly execute and return such Terms Agreement
to the Purchasing Agent or (ii) inform the Purchasing
Agent that its offer to purchase the Notes of a
particular tranche has been rejected, in whole or in
part. The Purchasing Agent will thereafter promptly
inform the other Agents and participating Selling
Group members of the action taken by the Company.
Preparation
of Pricing
Supplement: If any offer to purchase a Note is accepted by or on
behalf of the Company, the Company will provide a
Pricing Supplement (substantially in the form
attached to the Selling Agent Agreement as Exhibit D)
reflecting the terms of such Note and will have filed
such Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule
424(b) under the Act and will supply a copy thereof
(or additional copies if requested) to the Purchasing
Agent and one copy to the Trustee. The Purchasing
Agent will cause a Prospectus and Pricing Supplement
to be delivered to each of the other Agents and
Selling Group members that purchased such Notes, and
each of these, in turn, will pursuant to the terms of
the Selling Agent Agreement and the Master Selected
Dealer Agreement, cause to be delivered a copy of the
applicable Pricing Supplement to each purchaser of
Notes from such Agent or Selling Group member.
In each instance that a Pricing Supplement is
prepared, the Agents will affix the Pricing
Supplement to Prospectuses prior to their 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.
For each offer to purchase a Note solicited by an
Agent and accepted by or on behalf of the Company,
the Purchasing Agent will issue a confirmation to the
purchaser, with a copy to the Company, setting forth
-25-
the terms of such Note and other applicable details
described above and delivery and payment
instructions. In addition, the Purchasing Agent will
deliver to such purchaser the Prospectus (including
the Pricing Supplement) in relation to such Note
prior to or together with the earlier of any written
offer of such Note, delivery of the confirmation of
sale or delivery of the Note.
Settlement: The receipt of immediately available funds by the
Company in payment for Notes and the authentication
and issuance of the Global Note representing such
Notes shall constitute "Settlement" with respect to
such Note. All orders accepted by the Company will be
settled within one to three Business Days pursuant to
the timetable for Settlement set forth below, unless
the Company and the purchaser agree to Settlement on
a later date, and shall be specified upon acceptance
of such offer; provided, however, in all cases the
Company will notify the Trustee on the date issuance
instructions are given.
Settlement
Procedures: In the event of a purchase of Notes by any Agent, as
principal, appropriate Settlement details, if
different from those set forth below, will be set
forth in the applicable Terms Agreement to be entered
into between such Agent and the Company pursuant to
the Agreement. Settlement Procedures with regard to
each Note sold by an Agent, as agent for the Company,
shall be as follows:
A. After the acceptance of an offer by the
Company with respect to a Note, the
Purchasing Agent will communicate the
following details of the terms of such offer
(the "Note Sale Information") to the Company
by telephone confirmed in writing or by
facsimile transmission or other acceptable
written means:
1. Principal amount of the purchase;
2. Interest Rate;
3. Interest Payment Dates;
4. Settlement Date;
5. Maturity Date;
6. Purchase Price;
7. Purchasing Agent's commission
determined pursuant to Section IV(a)
of the Selling Agent Agreement;
-26-
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the
Company, such of the following as
are applicable:
(i) The date on and after which
such Note may be redeemed
(the "Redemption Commencement
Date"),
(ii) Initial redemption price (% of
par), and
(iii) Amount (% of par) that the
initial redemption price shall
decline (but not below par) on
each anniversary of the
Redemption Commencement Date;
11. Whether the Note has the Survivor's
Option;
12. Whether the Note is issued with
original discount and, if so, the
total amount of original issue
discount, the yield to maturity and
the initial accrual period of
original issue discount;
13. DTC Participant Number of the
institution through which the
customer will hold the beneficial
interest in the Global Note; and
14. Such other terms as are necessary to
complete the applicable form of
Note.
B. The Company will confirm the previously
assigned CUSIP number to the Global Note
representing such Note and then advise the
Trustee and the Purchasing Agent by
telephone (confirmed in writing at any time
on the same date) or by telecopier or other
form of electronic transmission of the
information received in accordance with
Settlement Procedure "A" above, the assigned
CUSIP number and the name of the Purchasing
Agent. Each such communication by the
Company will be deemed to constitute a
representation and warranty by the Company
to the Trustee and the Agents that (i) such
Note is then, and at the time
-27-
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
Purchasing Agent through DTC's Participant
Terminal System, a pending deposit message
specifying the following Settlement
information:
1. The information received in
accordance with Settlement Procedure
"A".
2. The numbers of the participant
accounts maintained by DTC on behalf
of the Trustee and the Purchasing
Agent.
3. The initial Interest Payment Date
for such Note, number of days by
which such date succeeds the related
DTC record date (which term means
the Regular Record Date), and if
then calculated, the amount of
interest payable on such Initial
Interest Payment Date (which amount
shall have been confirmed by the
Trustee).
4. The CUSIP number of the Global Note
representing such Notes.
5. The frequency of interest.
6. Whether such Global Note represents
any other Notes issued or to be
issued (to the extent then known).
D. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
E. The Trustee will complete and deliver a
Global Note representing such Note in a form
that has been approved by the Company, the
Agents and the Trustee.
F. The Trustee will authenticate the Global
Note representing such Note and maintain
possession of such Global Note.
-28-
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to
the Trustee's participant account and credit
such Note to the participant account of the
Agent maintained by DTC and (ii) debit the
settlement account of the Agent and credit
the settlement account of the Trustee
maintained by DTC, in an amount equal to the
price of such Note less the Purchasing
Agent's commission. The entry of such a
deliver order shall be deemed to constitute
a representation and warranty by the Trustee
to DTC that (a) the Global Note representing
such Note has been issued and authenticated
and (b) the Trustee is holding such Global
Note pursuant to the Certificate Agreement.
H. The Purchasing Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit
such Note to the Purchasing Agent's
participant account and credit such Note to
the participant accounts of the Participants
to whom such Note is to be credited
maintained by DTC and (ii) debit the
settlement accounts of such Participants and
credit the settlement account of the
Purchasing Agent maintained by DTC, in an
amount equal to the price of the Note so
credited to their accounts.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
J. The Trustee will credit to an account of the
Company maintained at JPMorgan Chase Bank
funds available for immediate use in an
amount equal to the amount credited to the
Trustee's DTC participant account in
accordance with Settlement Procedure "G".
K. The Trustee will send a copy of the Global
Note representing such Note by first-class
mail to the Company.
L. The Purchasing Agent will confirm the
purchase of each Note to the purchaser
thereof either by transmitting to the
Participant to whose account such Note has
been credited a confirmation order through
DTC's Participant Terminal System or by
mailing a written confirmation to such
purchaser. In all cases the Prospectus as
most recently amended or supplemented must
accompany or precede such confirmation.
-29-
M. Each Business Day, the Trustee will send to
the Company a statement setting forth the
principal amount of Notes outstanding as of
that date under the Indenture and setting
forth the CUSIP number(s) assigned to, and a
brief description of, any orders which the
Company has advised the Trustee but which
have not yet been settled.
Settlement
Procedures
Timetable: In the event of a purchase of Notes by the Purchasing
Agent, as principal, appropriate Settlement details,
if different from those set forth below will be set
forth in the applicable Terms Agreement to be entered
into between the Purchasing Agent and the Company
pursuant to the Selling Agent Agreement.
For orders of Notes solicited by an Agent, as agent,
and accepted by the Company, Settlement Procedures
"A" through "M" shall be completed as soon as
possible but not later than the respective times (New
York City time) set forth below:
Settlement
Procedure Time
A 4:00 p.m. on the Trade Day.
B 5:00 p.m. on the Trade Day.
C 2:00 p.m. on the Business Day before the
Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 a.m. on the Settlement Date.
G-H 2:00 p.m. on the Settlement Date.
I 4:45 p.m. on the Settlement Date.
▇-▇ 5:00 p.m. on the Settlement Date.
M Weekly or at the request of the Company.
NOTE: The Prospectus as most recently amended or
supplemented must accompany or precede any written
confirmation given to the customer (Settlement
Procedure "L"). Settlement Procedure "I" is subject
to extension in accordance with any extension Fedwire
closing deadlines and in the other events specified
in the SDFS operating procedures in effect on the
Settlement Date.
-30-
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 terms 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 after issuance, and the other of which
shall represent the remaining Notes previously
represented by the surrendered Global Note and shall
bear the CUSIP number of the surrendered Global Note.
If the purchase price for any Note is not timely paid
to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including
an indirect participant in DTC, acting on behalf of
such purchaser), such Participants and, in turn, the
related Agent may enter SDFS deliver orders through
DTC's participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "G"
and "H", respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the related
actions described in the preceding paragraph. If such
failure shall have occurred for any reason other than
default by the Agent in the performance of its
obligations hereunder or under the Selling Agent
Agreement, the Company will reimburse the Agent on an
equitable basis for its loss of the use of funds
during the period when they were credited to the
account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note, DTC may take any
actions in accordance with its SDFS operating
-31-
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: Each time a decision has been reached to change
rates, the Company will promptly advise the
Purchasing Agent of the new rates, who will forthwith
advise the Agents and Selling Group Members and will
suspend solicitation of purchases of Notes at the
prior rates. The Purchasing Agent may telephone the
Company with recommendations as to the changed
interest rates.
Suspension of
Solicitation,
Amendment or
Supplement: Subject to the Company's representations, warranties
and covenants contained in the Selling Agent
Agreement, the Company may instruct the Agents to
suspend at any time for any period of time or
permanently, the solicitation of orders to purchase
Notes. Upon receipt of such instructions (which may
be given orally), each Agent will forthwith suspend
solicitation until such time as the Company has
advised it that solicitation of purchases may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly
advise the Agents and the Trustee whether such orders
may be settled and whether copies of the Prospectus
as in effect at the time of the suspension may be
delivered in connection with the settlement of such
orders. The Company will have the sole responsibility
for such decision and for any arrangements which may
be made in the event that the Company determines that
such orders may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will
promptly advise the Agents and furnish the Agents and
the Trustee with the proposed amendment or supplement
and with such certificates and opinions as are
required, all to the extent required by and in
accordance with the terms of the Selling Agent
Agreement. Subject to the provisions of the Selling
-32-
Agent Agreement, the Company may file with the
Commission any supplement to the Prospectus relating
to the Notes. The Company will provide the Agents and
the Trustee with copies of any such supplement, and
confirm to the Agents that such supplement has been
filed with the Commission.
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in connection
with any payment to the Company, or the Agents or the
purchasers, it being understood by all parties that
payments made by the Trustee to either the Company or
the Agents shall be made only to the extent that
funds are provided to the Trustee for such purpose.
Advertising
Costs: The Company shall have the sole right to approve the
form and substance of any advertising an Agent may
initiate in connection with such Agent's solicitation
to purchase the Notes. The expense of such
advertising will be solely the responsibility of such
Agent, unless otherwise agreed to by the Company. The
Company agrees, with prior written approval in each
instance, that the Purchasing Agent may utilize the
Company's name, logo and service ▇▇▇▇ to identify the
Company as a member of the Direct Access Notes
Program in the Purchasing Agent's general materials
and marketing objectives relating to the Direct
Access Notes Program.
-33-
EXHIBIT C
GENERAL MOTORS ACCEPTANCE CORPORATION
SMARTNOTES(SM)
TERMS AGREEMENT
, 200_
General Motors Acceptance Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇: 482-B12-C24
Detroit, Michigan 48265-2000
Attention: U.S. Borrowings
The undersigned agrees to purchase [as Principal] [as Agent] the following
aggregate principal amount of Notes: $
The terms of such Notes shall be as follows:
CUSIP Number: _______
Interest Rate: %
---
Maturity Date:
----------------
Price to Public:
------------
Agent's Concession: %
---
Settlement Date, Time
and Place:
------------------
Survivor's Option:_________
Interest Payment Dates:
-----------
Optional Redemption, if any: ______
Initial Redemption Date: ___________
Redemption Price: Initially __% of Principal Amount and declining
by __% of the Principal Amount on each anniversary
of the Initial Redemption Date until the Redemption Price is 100% of
the Principal Amount.
-34-
[Any other terms and conditions agreed
to by such Agent and the Company]
ABN AMRO Financial Services, Inc.
By:_______________________
Title:______________________
ACCEPTED:
GENERAL MOTORS ACCEPTANCE CORPORATION
By:______________________________
Title:_____________________________
-35-
Exhibit D
Form of Pricing Supplement
Pricing Supplement No. Trade Date:
------------------------------------------------------
(To Prospectus dated ) Issue Date:
The date of this Pricing Supplement is (date)
------------------- ------------- ------------ -------- ------------- ------------- ----------- --------------------
Subject to
CUSIP Stated Redemption
or Interest Maturity Price Payment Survivor's Date and terms of
Common Code Rate to Public Selling Frequency Option redemption
(1) Concession (Yes/No)
------------------- ------------- ------------ -------- ------------- ------------- ----------- --------------------
------------------- ------------- ------------ -------- ------------- ------------- ----------- --------------------
-----------------------------
(1) Actual Price to Public may be less, and will be determined by prevailing
market prices at the time of purchase as set forth in the confirmation
statement.
{For Zero Coupon Notes} The yield to maturity for this Zero Coupon Notes is
dependent on the purchase price as determined by prevailing market prices at the
time of purchase. See confirmation statement for exact price and yield figures.
{For Original Issue Discount Notes} This Note is issued with original issue
discount and is subject to the tax provisions governing such debt instruments.
See the prospectus for detailed discussion of such provisions.
-36-
EXHIBIT E
Representative Form of Master Selected Dealer Agreement
[Name of Broker-Dealer]
[Broker-Dealer's Address]
Dear Selected Dealer:
In connection with public offerings of securities after the date hereof for
which we are acting as manager of an underwriting syndicate or are otherwise
responsible for the distribution of securities to the public by means of an
offering of securities for sale to selected dealers, you may be offered the
right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. Applicability of this Agreement. The terms and conditions of this
Agreement shall be applicable to any public offering of securities
("Securities") pursuant to a registration statement filed under the Securities
Act of 1933 (the "Securities Act") or exempt from registration thereunder (other
than a public offering of Securities effected wholly outside the United States
of America), wherein ABN AMRO Financial Services, Inc. (acting for its own
account or for the account of any underwriting or similar group or syndicate) is
responsible for managing or otherwise implementing the sale of the Securities to
selected broker-dealers ("Selected Dealers") and has expressly informed you that
such terms and conditions shall be applicable. Any such offering of Securities
to you as a Selected Dealer is hereinafter called an "Offering". In the case of
any Offering where we are acting for the account of any underwriting or similar
group or syndicate ("Underwriters"), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters, including, in
the case of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any Offering will be
subject to delivery of the Securities and their acceptance by us and any other
Underwriters, may be subject to the approval of all legal matters by counsel and
the satisfaction of other conditions, and may be made on the basis of
reservation of Securities or an allotment against subscription. We will advise
you by telegram, telex or other form of written communication ("Written
-37-
Communication", which term, in the case of any Offering described in Section
3(a) or 3(b) hereof, may include a prospectus or offering circular) of the
particular method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date referred to in
Section 3(c) hereof) of any Offering in which you are invited to participate. To
the extent such supplementary terms and conditions are inconsistent with any
provision herein, such terms and conditions shall supersede any such provision.
Unless otherwise indicated in any such Written Communication, acceptances and
other communications by you with respect to an Offering should be sent to ABN
AMRO Financial Services, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ (Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇). We reserve the right to reject any acceptance
in whole or in part. Unless notified otherwise by us, Securities purchased by
you shall be paid for on such date as we shall determine, on one business day's
prior notice to you, by certified or official bank check, in an amount equal to
the Public Offering Prices (as hereinafter defined) or, if we shall so advise
you, at such Public Offering Price less the Concession (as hereinafter defined),
payable in immediately available funds to the order of ABN AMRO Financial
Services, Inc., against delivery of the Securities. If Securities are purchased
and paid for at such Public Offering Price, such Concession will be paid after
the termination of the provisions of Section 3(c) hereof with respect to such
Securities. Notwithstanding the foregoing, unless notified otherwise by us,
payment for and delivery of Securities purchased by you shall be made through
the facilities of The Depository Trust Company, if you are a member, unless you
have otherwise notified us prior to the date specified in a Written
Communication to you from us or, if you are not a member, settlement may be made
through a correspondent who is a member pursuant to instructions which you will
send to us prior to such specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of Securities that
are registered under the Securities Act ("Registered Offering"), we shall
provide you with such number of copies of each preliminary prospectus and of the
final prospectus relating thereto as you may reasonably request for the purposes
contemplated by the Securities Act and the Securities Exchange Act of 1934 (the
"Exchange Act") and the applicable rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder. You represent and warrant
that you are familiar with Rule 15c2-8 under the Exchange Act relating to the
distribution of preliminary and final prospectuses and agree that you will
comply therewith. You agree to make a record of your distribution of each
preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, you will, upon our request, promptly forward copies
thereof to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to a
prospectus or by any Underwriter to give any information or to make any
representation not contained in the prospectus in connection with the sale of
such Securities.
-38-
(b) Offerings Pursuant to Offering Circular. In the case of any Offering of
Securities, other than a Registered Offering, which is made pursuant to an
offering circular or other document comparable to a prospectus in a Registered
Offering, including, without limitation, an Offering of "exempted securities" as
defined in Section 3(a)(12) of the Exchange Act (an "Exempted Securities
Offering"), we shall provide you with such number of copies of each preliminary
offering circular and of the final offering circular relating thereto as you may
reasonably request. You agree that you will comply with the applicable Federal
and state laws, and the applicable rules and regulations of any regulatory body
promulgated thereunder, governing the use and distribution of offering circulars
by brokers or dealers. You agree that in purchasing Securities pursuant to an
offering circular you will rely upon no statements whatsoever, written or oral,
other than the statements in the final offering circular delivered to you by us.
You will not be authorized by the issuer or other seller of Securities offered
pursuant to an offering circular or by any Underwriter to give any information
or to make any representation not contained in the offering circular in
connection with the sale of such Securities.
(c) Offer and Sale to the Public. With respect to any Offering of
Securities, we will inform you by a Written Communication of the public offering
price, the selling concession, the reallowance (if any) to broker-dealers and
the time when you may commence selling Securities to the public. After such
public offering has commenced, we may change the public offering price, the
selling concession and the reallowance (if any) to broker-dealers. The offering
price, selling concession and reallowance (if any) to broker-dealers at any time
in effect with respect to an Offering are hereinafter referred to, respectively,
as the "Public Offering Price", the "Concession" and the "Reallowance". With
respect to each Offering of Securities, until the provisions of this Section
3(c) shall be terminated pursuant to Section 4 hereof, you agree to offer
Securities to the public at no more than the Public Offering Price. If notified
by us, you may sell securities to the public at a lesser negotiated price than
the Public Offering Price, but in an amount not to exceed the Concession. If a
Reallowance is in effect, a reallowance from the Public Offering Price not in
excess of such Reallowance may be allowed as consideration for services rendered
in distribution to broker-dealers (i) who are actually engaged in the investment
banking or securities business, (ii) who execute the written agreement
prescribed by Rule 2740(c) of the Conduct Rules of the National Association of
Securities Dealers. Inc. (the "NASD") and (iii) who, if they are foreign banks,
broker-dealers or institutions not eligible for membership in the NASD,
represent to you that they will promptly reoffer such Securities at the Public
Offering Price and will abide by the conditions with respect to foreign banks,
broker-dealers and institutions set forth in Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may, with respect
to any Offering, be authorized to over-allot in arranging sales to Selected
Dealers, to purchase and sell Securities for long or short account and to
stabilize or maintain the market price of the Securities. You agree not to
-39-
purchase and sell Securities for which an order from a client has not been
received without our consent in each instance. You further agree that, upon our
request at any time and from time to time prior to the termination of the
provisions of Section 3(c) hereof with respect to any Offering, you will report
to us the amount of Securities purchased by you pursuant to such Offering which
then remain unsold by you and will, upon our request at any such time, sell to
us for our account or the account of one or more Underwriters such amount of
such unsold Securities as we may designate at the Public Offering Price less an
amount to be determined by us not in excess of the Concession. If, prior to the
later of (i) the termination of the provisions of Section 3(c) hereof with
respect to any Offering or (ii) the covering by us of any short position created
by us in connection with such Offering for our account or the account of one or
more Underwriters, we purchase or contract to purchase for our account or the
account of one or more Underwriters in the open market or otherwise any
Securities purchased by you under this Agreement as part of such Offering, you
agree to pay us on demand an amount equal to the Concession with respect to such
Securities (unless you shall have purchased such Securities pursuant to Section
2 hereof at the Public Offering Price in which case we shall not be obligated to
pay such Concession to you pursuant to Section 2) plus transfer taxes and
broker's commissions or dealer's ▇▇▇▇-up, if any, paid in connection with such
purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually engaged in the
investment banking or securities business. In addition, you further represent
and warrant that you are either (i) a member in good standing of the NASD, (ii)
a foreign bank, broker-dealer or institution not eligible for membership in the
NASD which agrees not to make any sales within the United States, its
territories or its possessions or to persons who are citizens thereof or
residents therein, and in making any other sales to comply with the NASD's
interpretation with respect to free riding and withholding, or (iii), solely in
connection with an Exempted Securities Offering, a bank, as defined in Section
3(a)(6) of the Exchange Act, that does not otherwise fall within provision (i)
or (ii) of this sentence (a "Bank"). You further represent, by your
participation in an Offering, that you have provided to us all documents and
other information required to be filed with respect to you, any related person
or any person associated with you or any such related person pursuant to the
supplementary requirements of the NASD's interpretation with respect to review
of corporate financing as such requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the Securities
wherein a selling Concession, discount or other allowance is received or
granted, (1) you will comply with the provisions of Rule 2740 of the Conduct
Rules of the NASD, (2) if you are a non-NASD member broker or dealer in a
foreign country, you will also comply (a), as though you were an NASD member,
with the provision of Rules 2730, 2740 and 2750 of the Conduct Rules and (b)
with Rule 2420 of the Conduct Rules as that Rule applies to a non-NASD member
broker or dealer in a foreign country and (3), in connection with an Exempted
Securities Offering, if you are a Bank, you will also comply, as though you were
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an NASD member, with the provision of Rules 2730, 2740 and 2750 of the Conduct
Rules.
You further agree that, in connection with any purchase of securities from
us that is not otherwise covered by the terms of this Agreement (whether we are
acting as manager, as a member of an underwriting syndicate or a selling group
or otherwise), if a selling Concession, discount or other allowance is granted
to you, clauses (1), (2) and (3) of the preceding paragraph will be applicable.
(f) Relationship among Underwriters and Selected Dealers. We may buy
Securities from or sell Securities to any Underwriter or Selected Dealer and the
Underwriters (if any) and the Selected Dealers may purchase Securities from and
sell Securities to each other at the Public Offering Price less all or any part
of the Reallowance. You are not authorized to act as agent for us, any
Underwriter or the issuer or other seller of any Securities in offering
Securities to the public or otherwise. Neither we nor any Underwriter shall be
under any obligation to you except for obligations assumed hereby or in any
Written Communication from us in connection with any Offering. Nothing contained
herein or in any Written Communication from us shall constitute the Selected
Dealers an association or partners with us or any Underwriter or with one
another. If the Selected Dealers, among themselves or with the Underwriters,
should be deemed to constitute a partnership for Federal income tax purposes,
then you elect to be excluded from the application of Subchapter K, Chapter 1,
Subtitle A of the Internal Revenue Code of 1986 and agree not to take any
position inconsistent with that election. You authorize us, in our discretion,
to execute and file on your behalf such evidence of that election as may be
required by the Internal Revenue Service. In connection with any Offering, you
shall be liable for your proportionate amount of any tax, claim, demand or
liability that may be asserted against you alone or against one or more Selected
Dealers participating in such Offering, or against us or the Underwriters, based
upon the claim that the Selected Dealers, or any of them, constitute an
association, an unincorporated business or other entity, including, in each
case, your proportionate amount of any expense incurred in defending against any
such tax, claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform you as to any
advice we have received from counsel concerning the jurisdictions in which
Securities have been qualified for sale or are exempt under the securities or
blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
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(h) Compliance with Law. You agree that in selling Securities pursuant to
any Offering (which agreement shall also be for the benefit of the issuer or
other seller of such Securities) you will comply with all applicable laws, rules
and regulations, including the applicable provisions of the Securities Act and
the Exchange Act, the applicable rules and regulations of the Securities and
Exchange Commission thereunder, the applicable rules and regulations of the
NASD, the applicable rules and regulations of any securities exchange having
jurisdiction over the Offering and the applicable laws, rules and regulations
specified in Section 3(b) hereof.
(i) You are aware that other than registering the Notes under the
Securities Act, no action has been or will be taken by the Company that would
permit the offer or sale of the Notes or possession or distribution of the
Prospectus or any other offering material relating to the Notes in any
jurisdiction where action for that purpose is required. Accordingly, you agree
that you will observe all applicable laws and regulations in each jurisdiction
in or from which you may directly or indirectly acquire, offer, sell or deliver
Notes or have in your possession or distribute the Prospectus or any other
offering material relating to the Notes and you will obtain any consent,
approval or permission required by you for the purchase, offer or sale by you of
Notes under the laws and regulations in force in any such jurisdiction to which
you are subject or in which you make such purchase, offer or sale. Neither the
Company nor any other Agent shall have any responsibility for determining what
compliance is necessary by you or for your obtaining such consents, approvals or
permissions. You further agree that you will take no action that will impose any
obligations on the Company or the other Agents. Subject as provided above, you
shall, unless prohibited by applicable law, furnish to each person to whom you
offer, sell or deliver Notes a copy of the Prospectus (as then amended or
supplemented) or (unless delivery of the Prospectus is required by applicable
law) inform each such person that a copy thereof (as then amended or
supplemented) will be made available upon request. You are not authorized to
give any information or to make any representation not contained in the
Prospectus or the documents incorporated by reference or specifically referred
to therein in connection with the offer and sale of the Notes.
(4) Indemnification. You agree to indemnify and hold harmless ABN AMRO
Financial Services, Inc., the issuer of the Securities, each person, if any, who
controls (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) ABN AMRO Financial Services, Inc. or the issuer
of the Securities, and their respective directors, officers, and employees from
and against any and all losses, liabilities, costs or claims (or actions in
respect thereof) (collectively, "Losses") to which any of them may become
subject (including all reasonable costs of investigating, disputing or defending
any such claim or action), insofar as such Losses arise out of or are in
connection with the breach of any representation, warranty, or agreement made by
you herein.
If any claim, demand, action or proceeding (including any governmental
investigation) shall be brought or alleged against an indemnified party in
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respect of which indemnity is to be sought against an indemnifying party, the
indemnified party shall promptly notify the indemnifying party in writing, and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnified party may designate in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the reasonable fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the indemnifying party has failed within a
reasonable time to retain counsel reasonably satisfactory to such indemnified
party or (iii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is agreed that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate law firm (in addition to local counsel where
necessary) for all such indemnified parties. Such firm shall be designated in
writing by the indemnified party. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
The indemnity agreements contained in this Section and the representations
and warranties by you in this Agreement, shall remain operative and in full
force and effect regardless of: (i) any termination of this Agreement; (ii) any
investigation made by an indemnified party or on such party's behalf or any
person controlling an indemnified party or by or on behalf of the indemnifying
party, its directors or officers or any person controlling the indemnifying
party; and (iii) acceptance of and payment for any Securities.
5. Termination, Supplements and Amendments. This Agreement may be
terminated by Written Communication to the other affected party or parties.
Until so terminated, this Agreement shall continue in full force and effect.
This Agreement may be supplemented or amended by us by written notice thereof to
you, and any such supplement or amendment to this Agreement shall be effective
with respect to any Offering to which this Agreement applies after the date of
such supplement or amendment. Each reference to "this Agreement" herein shall,
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as appropriate, be to this Agreement as so amended and supplemented. The terms
and conditions set forth in Section 3(c) hereof with regard to any Offering will
terminate at the close of business on the 30th day after the commencement of the
public offering of the Securities to which such Offering relates, but in our
discretion may be extended by us for a further period not exceeding 30 days and
in our discretion, whether or not extended, may be terminated at any earlier
time.
6. Successors and Assigns. This Agreement shall be binding on, and inure to
the benefit of, the parties hereto and other persons specified in Section 1
hereof, and the respective successors and assigns of each of them.
7. Governing Law. This Agreement and the terms and conditions set forth
herein with respect to any Offering together with such supplementary terms and
conditions with respect to such Offering as may be contained in any Written
Communication from us to you in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of New York.
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Please confirm by signing and returning to us the enclosed copy of this
Agreement that your subscription to, or your acceptance of any reservation of,
any Securities pursuant to an Offering shall constitute (i) acceptance of and
agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 4 hereof) together with and subject to any
supplementary terms and conditions contained in any Written Communication from
us in connection with such Offering, all of which shall constitute a binding
agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you have requested and received from us sufficient copies of
the final prospectus or offering circular, as the case may be, with respect to
such Offering in order to comply with your undertakings in Section 3(a) or 3(b)
hereof.
Very truly yours,
ABN AMRO FINANCIAL SERVICES, INC.
By:
------------------------------
Name:
Title:
CONFIRMED: ________ __, 2002
(NAME OF BROKER-DEALER)
By:
-----------------------------------------
Name:
Title:
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