EXHIBIT 1
GENERAL MOTORS ACCEPTANCE CORPORATION
$1,000,000,000
SMARTNOTES(SM)
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
March , 1998
ABN AMRO Incorporated
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Xxxxxx Xxxxx & Co., L.P.
00000 Xxxxxxxxxx
Xxx Xxxxx, XX 00000
Fidelity Capital Markets
A division of National Financial Services Corporation
World Trade Center
000 Xxxxxxxx Xxxxxx, XX0
Xxxxxx, XX 00000
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-2015
Xxxxx Xxxxxx Inc.
Seven World Trade Center
New York, NY 10048
------------------
(SM)Service Mark of General Motors Acceptance Corporation
Dear Sirs:
General Motors Acceptance Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell up to $1,000,000,000 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 The Chase Manhattan 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, and, after consultation with ABN AMRO Incorporated (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. 333- 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 Xxxxxx X.
Xxxxxxx, 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;
(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 Xxxxx Xxxx &
Xxxxxxxx, 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
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, 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 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)(i) 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.
(ii)So long as any Note remains outstanding and listed on a
Stock Exchange, if either (A) there is a significant change affecting any matter
described in the Prospectus the inclusion of which was required by applicable
law, the listing rules and regulations of such Stock Exchange the "Listing
Rules") or by such Stock Exchange, or (B) a significant new matter arises the
inclusion of information with respect to which would have been so required if it
had arisen when the Prospectus was prepared, to provide to the Purchasing Agent
information about the change or matter, publish such supplementary Prospectus as
may be required by such Stock Exchange and otherwise comply with applicable law
and the Listing Rules in that regard.
(iii)To use reasonable efforts to comply with any undertakings
given by it from time to time to any Stock Exchange on which any Notes are
listed.
IV.
(a) You propose to solicit purchases of the Notes upon the terms
and conditions set forth herein and in the Prospectus and upon the terms
communicated to you from time to time by the Company. For the purpose of such
solicitation you will use the Prospectus as then amended or supplemented which
has been most recently distributed to you by the Company, and you will solicit
purchases only as permitted or contemplated thereby and herein and will solicit
purchases of the Notes only as permitted by the Securities Act and the
applicable securities laws or regulations of any jurisdiction. The Company
reserves the right, in its sole discretion, to suspend solicitation of purchases
of the Notes commencing at any time for any period of time or permanently. Upon
receipt of instructions (which may be given orally) from the Company, you will
forthwith suspend solicitation of purchases until such time as the Company has
advised you that such solicitation may be resumed.
You are authorized to solicit orders for the Notes only in
denominations of $1,000 or more (in multiples of $1,000). You are not authorized
to appoint subagents or to engage the service of any other broker or dealer in
connection with the offer or sale of the Notes without the consent of the
Company. Unless 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. 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"). The Purchasing Agent and the other
Agents will share the above-mentioned Concession in such proportions as they 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, with the exception of 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
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 of 1933, 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) You represent and agree that (i) you have not offered or sold
and will not offer or sell any Notes to persons in the United Kingdom prior to
the expiry of the period of six months from the issue date of the Notes except
to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995; (ii) you have only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by you in connection with the issue of the Notes to a person who is of
a kind described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on; and (iii) you have complied and will
comply with all applicable provisions of the Financial Service Act 1986 with
respect to anything done by you in relation to any Notes in, from or otherwise
involving the United Kingdom.
V.
Each sale of Notes shall be made in accordance with the terms of this
Agreement and a separate agreement to be entered into which will provide for the
sale of such Notes to, and the purchase and reoffering thereof, by the
Purchasing Agent as principal. Each such separate agreement (which may be an
oral agreement and confirmed in writing as described below between the
Purchasing Agent and the Company) is herein referred to as a "Terms Agreement."
A Terms Agreement may also specify certain provisions relating to the reoffering
of such Notes by the Purchasing Agent. The Purchasing Agent's agreement to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations, warranties and agreements of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement, whether oral (and confirmed in writing which may be
by facsimile transmission) or in writing, shall describe the Notes to be
purchased pursuant thereto by the Purchasing Agent as principal, and may
specify, among other things, the principal amount of Notes to be purchased, the
interest rate or formula and maturity date or dates of such Notes, the interest
payment dates, if any, the price to be paid to the Company for such Notes, the
initial public offering price at which the Notes are proposed to be reoffered,
and the time and place of delivery of and payment for such Notes (the
"Settlement Date"), whether the Notes provide for a Survivor's Option or for
optional redemption by the Company and on what terms and conditions, and any
other relevant terms. In connection with the resale of the Notes purchased,
without the consent of the Company you are not authorized to appoint subagents
or to engage the service of any other broker or dealer, nor may you reallow any
portion of the discount paid to you by the Company. 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. The above representations and warranties shall not apply to any
statements or omissions made in the Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by you expressly
for use therein. Each acceptance by the Company of an offer for the purchase of
Notes and each issuance of Notes shall be deemed an affirmation by the Company
that the foregoing representations and warranties are true and correct at the
time, as the case may be, of such acceptance or of such issuance, in each case
as though expressly made at such time. The representations, warranties and
covenants of the Company shall survive the execution and delivery of this
Agreement and the issuance and sale of the Notes.
Each time the Registration Statement shall be amended by the filing of
a post-effective amendment with the Commission, or the filing by the Company of
a Form 10-K or Form 10-Q pursuant to Section 13 of the Exchange Act, or, if so
agreed in connection with a particular transaction, the Company shall furnish
the Agents with (1) a written opinion, dated the date of such amendment, filing
(in the case of a Form 10-Q, if requested in writing), or as otherwise agreed,
of counsel to the Company, in substantially the form previously delivered under
Section II(b), but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented at such date; (2) a
letter, dated the date of such amendment, filing, or as otherwise agreed, of
Deloitte & Touche LLP, independent auditors, in substantially the form
previously delivered under Section II(c), but modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended or supplemented at
such date; and (3) a certificate, dated the date of such amendment, filing, or
as otherwise agreed and signed by an executive officer of the Company, in
substantially the form previously delivered under Section II(a), but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended or supplemented at such date.
VII.
The Company agrees to indemnify and hold harmless you, each person, if
any, who controls (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) you and each of your and such person's
officers and directors against any and all losses, liabilities, costs or claims
(or actions in respect thereof) to which any of them may become subject
(including all reasonable costs of investigating, disputing or defending any
such claim or action), insofar as such losses, liabilities, costs or claims (or
actions in respect thereof) arise out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained 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.
You agree to indemnify and hold harmless the Company, each person, if
any, who controls (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act), the Company, and the Company's and such
person's officers and directors from and against any and all losses,
liabilities, costs or claims (or actions in respect thereof) to which any of
them may become subject (including all reasonable costs of investigating,
disputing or defending any such claim or action), insofar as such losses,
liabilities, costs or claims (or actions in respect thereof) arise out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or Prospectus, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, in each
case only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the section of the Prospectus
entitled "Plan of Distribution" or any amendment or supplement thereto in
reliance on and in conformity with written information furnished to the Company
by you expressly for use therein.
You agree to indemnify and hold harmless the Company, the other Agents,
each director and officer of the Company, or of any of the other Agents, and
each person, if any, who controls (within the meaning of Section 15 of the
Securities Act) the Company, or any of the other Agents, 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 of any of the terms, conditions,
agreements and representations of Section IV of the Agreement.
If any claim, demand, action or proceeding (including any governmental
investigation) shall be brought or alleged against an indemnified party in
respect of which indemnity is to be sought against an indemnifying party
pursuant to the preceding paragraphs, the indemnified party shall promptly
notify the indemnifying party in writing, and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnified party may designate in such proceeding and shall pay the reasonable
fees and expenses of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the indemnifying party has failed within a reasonable time to retain
counsel reasonably satisfactory to such indemnified party or (iii) the named
parties to any such proceeding (including 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.
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.
Any Terms Agreement shall be subject to termination in your absolute
discretion on the terms set forth or incorporated by reference therein. The
termination of this Agreement shall not require termination of any agreement by
the Purchasing Agent to purchase Notes as principal, and the termination of any
such agreement shall not require termination of this Agreement.
If this Agreement is terminated, the last sentence of the second
paragraph of Section IV(a), Section III(c), (d) and (e), Section VII, and the
first paragraph of Section XIV shall survive; provided that if at the time of
termination of this Agreement an offer to purchase Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such Notes
has not occurred, the provisions of Section III(a) and (b), Section IV(b) and
Section V shall also survive until time of delivery.
X.
Except as otherwise specifically provided herein, all statements,
requests, notices and advices hereunder shall be in writing, or by telephone if
promptly confirmed in writing, and if to you shall be sufficient in all respects
if delivered in person or sent by telex, facsimile transmission (confirmed in
writing), or registered mail to you at your address, telex or telecopier number
set forth below by your signature and if to the Company shall be sufficient in
all respects if delivered or sent by telex, telecopier or registered mail to the
Company at 0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000, xxxxx number
425543 or telecopier number 000-000-0000, marked for the attention of the
Secretary. All such notices shall be effective on receipt.
XI.
This Agreement shall be binding upon you and the Company, and inure
solely to the benefit of you and the Company and any other person expressly
entitled to indemnification hereunder and the respective personal
representatives, successors and assigns of each, and no other person shall
acquire or have any rights under or by virtue of this Agreement.
XII.
This Agreement shall be governed by and construed in accordance with
the substantive laws of the State of New York. Each party to this Agreement
irrevocably agrees that any legal action or proceeding against it arising out of
or in connection with this Agreement or for recognition or enforcement of any
judgment rendered against it in connection with this Agreement may be brought in
any Federal or New York State court sitting in the Borough of Manhattan, and, by
execution and delivery of this Agreement, such party hereby irrevocably accepts
and submits to the jurisdiction of each of the aforesaid courts in personam,
generally and unconditionally with respect to any such action or proceeding for
itself and in respect of its property, assets and revenues. Each party hereby
also irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any such action or
proceeding brought in any such court and any claim that any such action or
proceeding has been brought in an inconvenient forum.
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 Xxxxx Xxxx & Xxxxxxxx, counsel for the
Agents (including "Blue Sky" fees and disbursements; (vi) if the Company lists
Notes on a securities exchange, the costs and fees of such listing; and (vii)
any fees charged by rating agencies for the rating of the Notes.
This Agreement may be executed by each of the parties hereto in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Company and you.
Very truly yours,
GENERAL MOTORS ACCEPTANCE CORPORATION
By:___________________________________
Title:________________________________
Confirmed and accepted
as of the date first above
written:
ABN AMRO INCORPORATED
By:______________________________
Title:___________________________
ABN AMRO Incorporated
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention:
Telefax:
X. X. XXXXXXX & SONS, INC.
By:______________________________
Title:___________________________
X. X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention:
Telefax:
XXXXXX XXXXX & CO., L.P.
By:______________________________
Title:___________________________
Xxxxxx Xxxxx & Co., L.P.
00000 Xxxxxxxxxx
Xxx Xxxxx, Xxxxxxxx 63131
Attention:
Telefax:
FIDELITY CAPITAL MARKETS
a division of National Financial Services Corporation
By:______________________________
Title:___________________________
Fidelity Capital Markets
a division of National Financial Services Corporation
World Trade Center
000 Xxxxxxxx Xxxxxx, XX0
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Telefax:
PRUDENTIAL SECURITIES INCORPORATED
By:______________________________
Title:___________________________
Prudential Securities Incorporated
One New York Plaza
15th Floor
New York, New York 10292-2015
Attention:
Telefax:
XXXXX XXXXXX INC.
By:______________________________
Title:___________________________
Xxxxx Xxxxxx Inc.
Seven World Trade Center
New York, New York 10048
Attention:
Telefax:
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.................. .200%
23 months to less than 35 months................. .400%
35 months to less than 47 months................. .625%
47 months to less than 59 months................. .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%
EXHIBIT B
GENERAL MOTORS ACCEPTANCE CORPORATION
$1,000,000,000
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 Incorporated (the "Purchasing Agent"), X.X.
Xxxxxxx & Sons, Inc., Xxxxxx Xxxxx & Co., L.P., Fidelity Capital Markets, a
division of National Financial Services Corporation, Prudential Securities
Incorporated and Salomon Brothers 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 Dealers Agreement (a "Dealers
Agreement") attached hereto as Schedule E. The Agents have agreed to use their
reasonable best efforts to solicit purchases of the Notes. The Notes will be
senior debt and have been registered with the Securities and Exchange Commission
(the "Commission"). The Chase Manhattan 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, The Chase Manhattan 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.
Administrative procedures and specific terms of the offering are explained
below. Administrative responsibilities will be handled for the Company by its
Borrowings Department; accountable document control and record-keeping
responsibilities will be performed by its Comptroller's Department. The Company
will advise the Agents and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agents and the Trustee are to
communicate regarding offers to purchase Notes and the details of their
delivery.
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.
Each 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 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
$200,000,000 in aggregate principal or face amount, one
replacement Global Note will be authenticated and issued to
represent each $200,000,000 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
$200,000,000. If one or more Notes having an aggregate
principal or face amount in excess of $200,000,000 would,
but for the preceding sentence, be represented by a single
Global Note, then one Global Note will be issued to
represent each $200,000,000 principal or face amount of such
Note or Notes and an additional Global Note will be issued
to represent any remaining principal amount of such Note or
Notes. In such case, each of the Global Notes representing
such Note or Notes shall be assigned the same CUSIP number.
Issue Price: Unless otherwise specified in an applicable Pricing
Supplement, each Note will be issued at the percentage of
principal amount specified in the Prospectus relating to
such Note.
Interest: General: 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 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 sixth 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, 1998 to April 1, 1999 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,
1998 to April 1, 1999 equals 4 months and 28 days, or 148
days; the interest payable equals 148/360 times the annual
rate of interest times the principal amount of the Note.)
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 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 The Chase Manhattan
Bank, by wire transfer to The Chase Manhattan 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 date of Maturity 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
responsible for forwarding payments and materials directly
to the beneficial owner of such Note.
Procedure for
Rate Setting
and Posting: The Company and the Agents will discuss, from time to time,
the aggregate principal amounts of, the Maturities, the
Issue Price and the interest rates to be borne by Notes
that may be sold as a result of the solicitation of orders
by the Agents. If the Company decides to set interest rates
borne by any Notes in respect of which the Agents are to
solicit orders (the setting of such interest rates to be
referred to herein as "Posting") or if the Company decides
to change interest rates previously posted by it, it will
promptly advise the Agents of the prices and interest rates
to be posted.
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 Note 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: 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.
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 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;
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the Company, such of
the following as are applicable:
(i) The date on and after which such
Note may be redeemed (the "Redemption
Commencement Date"),
(ii) Initial redemption price(% of par),
and
(iii) Amount (% of par) that the initial
redemption price shall decline (but
not below par) on each anniversary
of the Redemption Commencement Date;
11. Whether the Note has the Survivor's Option;
12. If a Discount Note, 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 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.
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.
X. The Trustee will credit to an account of the Company
maintained at The Chase Manhattan 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.
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.
X-X 5:00 p.m. on the Settlement Date.
M Weekly or at the request of the Company.
NOTE: The Prospectus as most recently amended or
supplemented must accompany or precede any written
confirmation given to the customer (Settlement Procedure
"L"). Settlement Procedure "I" is subject to extension in
accordance with any extension Fedwire closing deadlines and
in the other events specified in the SDFS operating
procedures in effect on the Settlement Date.
If Settlement of a Note is rescheduled or cancelled, the
Trustee will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message 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 Agency Agreement, the
Company will reimburse the Agent on an equitable basis for
its loss of the use of funds during the period when they
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Note, DTC may take any actions in
accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect to
one or more, but not all, of Notes that were to have been
represented by a Global Note, the Trustee will provide, in
accordance with Settlement Procedures "D" and "E", for the
authentication and issuance of a Global Note representing
the other Notes to have been represented by such Global Note
and will make appropriate entries in its records.
Procedure for
Rate Changes: Each time a decision has been reached to change rates, the
Company will promptly advise the Agents of the new rates,
who will forthwith suspend solicitation of purchases of
Notes at the prior rates. The Agents may telephone the
Company with recommendations as to the changed interest
rates.
Suspension of
Solicitation
Amendment or
Supplement: Subject to the Company's representations, warranties and
covenants contained in the Selling Agent Agreement, the
Company may instruct the Agents to suspend at any time for
any period of time or permanently, the solicitation of
orders to purchase Notes. Upon receipt of such instructions
(which may be given orally), each Agent will forthwith
suspend solicitation until such time as the Company has
advised it that solicitation of purchases may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and the Trustee whether such orders may be
settled and whether copies of the Prospectus as in effect at
the time of the suspension may be delivered in connection
with the settlement of such orders. The Company will have
the sole responsibility for such decision and for any
arrangements which may be made in the event that the Company
determines that such orders may not be settled or that
copies of such Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will promptly
advise the Agents and furnish the Agents and the Trustee
with the proposed amendment or supplement and with such
certificates and opinions as are required, all to the extent
required by and in accordance with the terms of the Selling
Agent Agreement. Subject to the provisions of the Selling
Agent Agreement, the Company may file with the Commission
any supplement to the Prospectus relating to the Notes. The
Company will provide the Agents and the Trustee with copies
of any such supplement, and confirm to the Agents that such
supplement has been filed with the Commission.
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.
EXHIBIT C
GENERAL MOTORS ACCEPTANCE CORPORATION
SMARTNOTES(SM)
TERMS AGREEMENT
, 199
General Motors Acceptance Corporation
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: U.S. Borrowings
The undersigned agrees to purchase the following aggregate principal
amount of Notes: $
The terms of such Notes shall be as follows:
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.
[Any other terms and conditions agreed
to by such Agent and the Company]
ABN AMRO INCORPORATED
By:_________________________
Title:______________________
ACCEPTED:
GENERAL MOTORS ACCEPTANCE CORPORATION
By:________________________________
Title:_____________________________
Exhibit D
Form of Pricing Supplement
--------------------------
SMARTNOTE$(SM)
[OBJECT OMITTED]
-------------------------------------------------------------
------------------------------------
Pricing Supplement No. Trade Date:
------------------------------
(To Prospectus dated March ___, 1998) Issue Date:
The date of this Pricing Supplement is [date]
------------- ---------- ---------- ------------ ------------- -----------
CUSIP Stated
or Interest Maturity Price to Reallowance Payment
Common Code Rate Public (1) Frequency
------------- ---------- ---------- ------------ ------------- -----------
------------- -----------------------------------------
Subject to Redemption
Survivor's -----------------------------------------
Option Yes/No Date and terms of redemption
------------- -----------------------------------------
-----------------------------
(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.
EXHIBIT E
Form of Master Selected Dealer Agreement
----------------------------------------
[Name of Dealer]
[Xxxxxx'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 Incorporated) (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 dealers ("Selected Dealers") and has expressly informed you that such
terms and conditions shall be applicable. Any such offering of Securities to you
as a Selected Dealer is hereinafter called an "Offering". In the case of any
Offering where we are acting for the account of any underwriting or similar
group or syndicate ("Underwriters"), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters, including, in
the case of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases: Any Offering
will be subject to delivery of the Securities and their acceptance by us and any
other Underwriters, may be subject to the approval of all legal matters by
counsel and the satisfaction of other conditions, and may be made on the basis
of reservation of Securities or an allotment against subscription. We will
advise you by telegram, telex or other form of written communication ("Written
Communication", which term, in the case of any Offering described in Section
3(a) or 3(b) hereof, may include a prospectus or offering circular) of the
particular method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date 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 Incorporated, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000
(Telecopy: (000) 000-0000). 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 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
New York Clearing House funds to the order of ABN AMRO Incorporated, 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 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.
(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, 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
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 to dealers. The offering
price, selling Concession and reallowance (if any) to 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 only at the Public Offering Price, except that 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 dealers who are actually engaged in the investment banking or
securities business, who execute the written agreement prescribed by section
24(c) of Article III of the Rules of Fair Practice of the National Association
of Securities Dealers, Inc. (the "NASD") and who are either members in good
standing of the NASD or foreign banks, dealers or institutions not eligible for
membership in the NASD who 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, 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 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 mark-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 and either a member in
good standing of the NASD or, if you are not such a member, you are a foreign
bank, dealer or institution not eligible for membership in the NASD which agrees
to make no sales within the United States, its territories or its possessions or
to persons who are citizens thereof or residents therein, and in making other
sales to comply with the NASD's interpretation with respect to free riding and
withholding. 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 section 24 of
Article III of the NASD's Rules of Fair Practice and (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 sections 8 and 36 thereof
and (b) with section 25 thereof as that section applies to a non-NASD member
broker or dealer in a foreign country.
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) and (2) 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, without consent, 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 Concession. You are not authorized to
act as agent for us, any Underwriter or the issuer or other seller of any
Securities in offering Securities to the public or otherwise. Neither we nor any
Underwriter shall be under any obligation to you except for obligations assumed
hereby or in any Written Communication from us in connection with any Offering.
Nothing contained herein or in any Written Communication from us shall
constitute the Selected Dealers an association or partners with us or any
Underwriter or with one another. If the Selected Dealers, among themselves or
with the Underwriters, should be deemed to constitute a partnership for Federal
income tax purposes, then you elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986 and
agree not to take any position inconsistent with that election. You authorize
us, in our discretion, to execute and file on your behalf such evidence of that
election as may be required by the Internal Revenue Service. In connection with
any Offering, you shall be liable for your proportionate amount of any tax,
claim, demand or liability that may be asserted against you alone or against one
or more Selected Dealers participating in such Offering, or against us or the
Underwriters, based upon the claim that the Selected Dealers, or any of them,
constitute an association, an unincorporated business or other entity,
including, in each case, your proportionate amount of any expense incurred in
defending against any such tax, claim, demand or liability.
(g) Blue Sky Laws: Upon application to us, we shall inform
you as to any advice we have received from counsel concerning the jurisdictions
in which Securities have been qualified for sale or are exempt under the
securities or blue sky laws of such jurisdictions, but we do not assume any
obligation or responsibility as to your right to sell Securities in any such
jurisdiction.
(h) Compliance with Law: You agree that in selling
Securities pursuant to any Offering (which agreement shall also be for the
benefit of the issuer or other seller of such Securities) you will comply with
all applicable laws, rules and regulations, including the applicable provisions
of the Securities Act and the Exchange Act, the applicable rules and regulations
of the Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, the applicable rules and regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules
and regulations specified in Section 3(b) hereof.
4. Termination, Supplements and Amendments: This Agreement shall
continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented or
amended by us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to any Offering to
which this Agreement applies after the date of such supplement or amendment.
Each reference to "this Agreement" herein shall, as appropriate, be to this
Agreement as so amended and supplemented. The terms and conditions set forth in
Section 3(c) hereof with regard to any Offering will terminate at the close of
business on the 30th day after the commencement of the public offering of the
Securities to which such Offering relates, but in our discretion may be extended
by us for a further period not exceeding 30 days and in our discretion, whether
or not extended, may be terminated at any earlier time.
5. 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.
6. 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 Illinois.
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 INCORPORATED
By:
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Name:
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Title:
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CONFIRMED: March , 1998
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(Name of Dealer)
By:
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Name:
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(Print name)
Title:
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