GENERAL MOTORS ACCEPTANCE CORPORATION
$8,000,000,000
SMARTNOTESSM
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
May 22, 2001
Dear Ladies and Gentlemen:
General Motors Acceptance Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell up to $8,000,000,000 aggregate principal
amount of its SmartNotesSM 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, but the Company reserves the right to sell Notes directly
on its own behalf and, after consultation with ABN AMRO Financial Services, Inc.
(the "Purchasing Agent"), the Company reserves the right to enter into
agreements substantially identical hereto with other agents and (2) agrees that
whenever the Company determines to sell Notes pursuant to this Agreement, such
Notes shall be sold pursuant to a Terms Agreement relating to such sale in
accordance with the provisions of Section V hereof between the Company and the
Purchasing Agent with the Purchasing Agent purchasing such Notes as principal
for resale to others.
I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement No. XXX-XXXXX 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, only if specifically
called for by any written agreement by the Purchasing Agent to purchase Notes as
principal, the Purchasing Agent's obligations hereunder and under such
agreement, shall be subject to such of the additional conditions set forth in
clauses (a), as it relates to the executive officer's certificate, and clauses
(b), (c) and (d) above, as agreed to by the parties, each of which such agreed
conditions shall be met on the corresponding Settlement Date.
III.
In further consideration of your agreements herein contained, the Company
covenants as follows:
(a) To furnish to you, without charge, a copy of (i) the Indenture, (ii)
the resolutions of the Board of Directors (or Executive Committee) of the
Company authorizing the issuance and sale of the Notes, certified by the
Secretary or Assistant Secretary of the Company as having been duly adopted,
(iii) the Registration Statement including exhibits and materials incorporated
by reference therein and (iv) as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus (other than amendments or supplements to change interest rates), to
furnish you a copy of each such proposed amendment or supplement.
(c) To furnish you copies of each amendment to the Registration Statement
and of each amendment and supplement to the Prospectus in such quantities as you
may from time to time reasonably request; and if at any time when the delivery
of a Prospectus shall be required by law in connection with sales of any of the
Notes, either (i) any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact, or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading or (ii) for any other reason it shall be necessary to amend
or supplement the latest Prospectus, as then amended or supplemented, or to file
under the Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, the Company will
(A) notify you to suspend the solicitation of offers to purchase Notes and if
notified by the Company, you shall forthwith suspend such solicitation and cease
using the Prospectus as then amended or supplemented and (B) promptly prepare
and file with the Commission such document incorporated by reference in the
Prospectus or an amendment or supplement to the Registration Statement or the
Prospectus which will correct such statement or omission or effect such
compliance and will provide to you without charge a reasonable number of copies
thereof, which you shall use thereafter.
(d) To endeavor to qualify such Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all reasonable expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with the
determination of the eligibility of such Notes for investment under the laws of
such jurisdictions as you may designate, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation to do
business, or to file a general consent to service of process, in any
jurisdiction.
(e) The Company will make generally available to its security holders and
to you as soon as practicable earning statements that satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Securities Act) of the
Registration Statement with respect to each sale of Notes. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(f) To use its reasonable efforts, in cooperation with the Purchasing
Agent, to cause such Notes as the Company and the Purchasing Agent agree to be
accepted for listing on any stock exchange (each, a "Stock Exchange"), in each
case as the Company and the Purchasing Agent shall deem to be appropriate. In
connection with any such agreement to qualify Notes for listing on a Stock
Exchange, the Company shall use its reasonable efforts to obtain such listing
promptly and shall furnish any and all documents, instruments, information and
undertakings that may be necessary or advisable in order to obtain and maintain
the listing.
IV.
(a) You propose to solicit purchases of the Notes upon the terms and
conditions set forth herein and in the Prospectus and upon the terms
communicated to you from time to time by the Company. For the purpose of such
solicitation you will use the Prospectus as then amended or supplemented which
has been most recently distributed to you by the Company, and you will solicit
purchases only as permitted or contemplated thereby and herein and will solicit
purchases of the Notes only as permitted by the Securities Act and the
applicable securities laws or regulations of any jurisdiction. The Company
reserves the right, in its sole discretion, to suspend solicitation of purchases
of the Notes commencing at any time for any period of time or permanently. Upon
receipt of instructions (which may be given orally) from the Company, you will
forthwith suspend solicitation of purchases until such time as the Company has
advised you that such solicitation may be resumed.
You are authorized to solicit orders for the Notes only in denominations of
$1,000 or more (in multiples of $1,000). You are not authorized to appoint
subagents or to engage the service of any other broker or dealer in connection
with the offer or sale of the Notes without the consent of the Company. Unless
authorized by the Purchasing Agent in each instance, each Agent agrees not to
purchase and sell Notes for which an order from a client has not been received.
In addition, unless otherwise instructed by the Company, the Purchasing Agent
shall communicate to the Company, orally or in writing, each offer to purchase
Notes. The Company shall have the sole right to accept offers to purchase Notes
offered through you and may reject any proposed purchase of Notes as a whole or
in part. You shall have the right, in your discretion reasonably exercised, to
reject any proposed purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of your agreements contained herein.
Unless otherwise agreed between the Company and the Purchasing Agent, the
Company agrees to pay the Purchasing Agent, as consideration for soliciting the
sale of the Notes pursuant to a Terms Agreement, a concession in the form of a
discount equal to the percentages of the initial offering price of each Note
sold as set forth in Exhibit A hereto (the "Concession"); provided, however,
that the Concession shall not exceed the amounts set forth in the Prospectus.
The Purchasing Agent and the other Agents will share the above-mentioned
Concession in such proportions as they and the Company may agree.
Unless otherwise authorized by the Company, all Notes shall be sold to the
public at a purchase price not to exceed 100% of the principal amount thereof,
plus accrued interest, if any, 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, no action has been or will be taken by the Company that would
permit the offer or sale of the Notes or possession or distribution of the
Prospectus or any other offering material relating to the Notes in any
jurisdiction where action for that purpose is required. Accordingly, you agree
that you will observe all applicable laws and regulations in each jurisdiction
in or from which you may directly or indirectly acquire, offer, sell or deliver
Notes or have in your possession or distribute the Prospectus or any other
offering material relating to the Notes and you will obtain any consent,
approval or permission required by you for the purchase, offer or sale by you of
Notes under the laws and regulations in force in any such jurisdiction to which
you are subject or in which you make such purchase, offer or sale. Neither the
Company nor any other Agent shall have any responsibility for determining what
compliance is necessary by you or for your obtaining such consents, approvals or
permissions. You further agree that you will take no action that will impose any
obligations on the Company or the other Agents. Subject as provided above, you
shall, unless prohibited by applicable law, furnish to each person to whom you
offer, sell or deliver Notes a copy of the Prospectus (as then amended or
supplemented) or (unless delivery of the Prospectus is required by applicable
law) inform each such person that a copy thereof (as then amended or
supplemented) will be made available upon request. You are not authorized to
give any information or to make any representation not contained in the
Prospectus or the documents incorporated by reference or specifically referred
to therein in connection with the offer and sale of the Notes.
(d) GMAC shall be responsible for the contents of its website
xxx.XxxxxXxxxx.xxx.
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; (vi) that (a) no litigation or proceeding shall be threatened or
pending to restrain or enjoin the issuance or delivery of the Notes, or which in
any way questions or affects the validity of the Notes and (b) no stop order
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceedings for such purpose shall be pending before or threatened by the
Commission and there shall have been no material adverse change not in the
ordinary course of business in the consolidated financial condition of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus, each of which conditions shall be met
on the corresponding Settlement Date; (vii) no authorization, consent or
approval of, or registration or filing with, any governmental or public body or
regulatory authority in the United States is required on the part of the Company
for the issuance of the Notes in accordance with the Indenture or the sale of
the Notes in accordance with this Agreement other than the registration of the
Notes under the Securities Act, qualification of the Indenture under the Trust
Indenture Act and compliance with the securities or Blue Sky laws of various
jurisdictions; and (viii) the execution and delivery of the Indenture, the
issuance of the Notes in accordance with the Indenture and the sale of the Notes
pursuant to this Agreement do not and will not contravene any provision of
applicable law or result in any violation by the Company of any of the terms or
provisions of the Certificate of Incorporation or By-Laws of the Company, or any
indenture, mortgage or other agreement or instrument by which the Company is
bound. The above representations and warranties shall not apply to any
statements or omissions made in the Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by you expressly
for use therein. Each acceptance by the Company of an offer for the purchase of
Notes and each issuance of Notes shall be deemed an affirmation by the Company
that the foregoing representations and warranties are true and correct at the
time, as the case may be, of such acceptance or of such issuance, in each case
as though expressly made at such time. The representations, warranties and
covenants of the Company shall survive the execution and delivery of this
Agreement and the issuance and sale of the Notes.
Each time the Registration Statement shall be amended by the filing of a
post-effective amendment with the Commission, or the filing by the Company of a
Form 10-K or Form 10-Q pursuant to Section 13 of the Exchange Act, or, if so
agreed in connection with a particular transaction, the Company shall furnish
the Agents with (1) a written opinion, dated the date of such amendment, filing
, or as otherwise agreed, of counsel to the Company, in substantially the form
previously delivered under Section II(b), but modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended or supplemented at
such date; (2) a letter, dated the date of such amendment, filing, or as
otherwise agreed, of Deloitte & Touche LLP, independent auditors, in
substantially the form previously delivered under Section II(c), but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended or supplemented at such date; and (3) a certificate, dated the date of
such amendment, filing, or as otherwise agreed and signed by an executive
officer of the Company, in substantially the form previously delivered under
Section II(a), but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented at such date.
VII.
The Company agrees to indemnify and hold harmless you, each person, if any,
who controls (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) you and each of your and such person's officers
and directors against any and all losses, liabilities, costs or claims (or
actions in respect thereof) to which any of them may become subject (including
all reasonable costs of investigating, disputing or defending any such claim or
action), insofar as such losses, liabilities, costs or claims (or actions in
respect thereof) arise out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any Prospectus, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading
provided: (i) that the Company shall not be liable for any such loss, liability,
cost, action or claim arising from any statements or omissions made in reliance
on and in conformity with written information provided by you to the Company
expressly for use in the Registration Statement or Prospectus or any amendment
or supplement thereto; and (ii) that the Company shall not be liable to you or
any person controlling you with respect to the Prospectus to the extent any such
loss, liability, cost, action or claim to you or such controlling person results
from the fact that you sold Notes to a person to whom there was not sent or
given, at or prior to the earlier of either the mailing or delivery of the
written confirmation of such sale or the delivery of such Notes to such person,
a copy of the Prospectus as then amended or supplemented, if the Company has
previously furnished copies thereof to you.
Each Agent (including the Purchasing Agent) severally agrees to indemnify
and hold harmless the Company, each person, if any, who controls (within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act), the Company, and the Company's and such person's officers and directors
from and against any and all losses, liabilities, costs or claims (or actions in
respect thereof) to which any of them may become subject (including all
reasonable costs of investigating, disputing or defending any such claim or
action), insofar as such losses, liabilities, costs or claims (or actions in
respect thereof) arise out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus, or any amendment or supplement thereto, or any omission
or alleged omission to state therein a material fact necessary to make the
statements therein not misleading, in each case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the section of the Prospectus entitled "Plan of Distribution" or any
amendment or supplement thereto in reliance on and in conformity with written
information furnished to the Company by you expressly for use therein.
Each Agent (including the Purchasing Agent) severally agrees to indemnify
and hold harmless the Company, the Purchasing Agent, each director and officer
of the Company or of the Purchasing Agent, and each person, if any, who controls
(within the meaning of Section 15 of the Securities Act) the Company against any
and all losses, claims, damages, liabilities, expenses, actions and demands to
which they or any of them may become subject (including all reasonable costs of
investigating, disputing or defending any such claim, action or demand) under
the law of any jurisdiction or which may be made against them arising out of, or
in connection with the breach of such Agent (including the Purchasing Agent) of
any of the terms, conditions, agreements and representations of Section IV of
the Agreement.
If any claim, demand, action or proceeding (including any governmental
investigation) shall be brought or alleged against an indemnified party in
respect of which indemnity is to be sought against an indemnifying party
pursuant to the preceding paragraphs, the indemnified party shall promptly
notify the indemnifying party in writing, and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnified party may designate in such proceeding and shall pay the reasonable
fees and expenses of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the indemnifying party has failed within a reasonable time to retain
counsel reasonably satisfactory to such indemnified party or (iii) the named
parties to any such proceeding (including 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.
Unless specifically set forth in a Terms Agreement, a Terms Agreement shall
not be subject to termination. The termination of this Agreement shall not
require termination of any agreement by the Purchasing Agent to purchase Notes
as principal, and the termination of any Terms Agreement shall not require
termination of this Agreement.
If this Agreement is terminated, the last sentence of the second paragraph
of Section IV(a), Section III(c), (d) and (e), Section VII, and the first
paragraph of Section XIV shall survive; provided that if at the time of
termination of this Agreement an offer to purchase Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such Notes
has not occurred, the provisions of Section III(a) and (b), Section IV(b) and
Section V shall also survive until time of delivery.
X.
Except as otherwise specifically provided herein, all statements, requests,
notices and advices hereunder shall be in writing, or by telephone if promptly
confirmed in writing, and if to you shall be sufficient in all respects if
delivered in person or sent by telex, facsimile transmission (confirmed in
writing), or registered mail to you at your address, telex or telecopier number
set forth below by your signature and if to the Company shall be sufficient in
all respects if delivered or sent by telex, telecopier or registered mail to the
Company at 0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000, telex 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:
EXHIBIT A
SMARTNOTESSM
GMAC
DEALER AGENT PROGRAM
The following Concessions are payable as a percentage of the non-discounted
Price to Public of each Note sold through the Purchasing Agent.
9 months to less than 23 months . . . . . . . . . 0.200%
23 months to less than 35 months. . . . . . . . . 0.400%
35 months to less than 47 months. . . . . . . . . 0.625%
47 months to less than 59 months. . . . . . . . . 0.750%
59 months to less than 71 months. . . . . . . . . 1.000%
71 months to less than 83 months. . . . . . . . . 1.100%
83 months to less than 95 months. . . . . . . . . 1.200%
95 months to less than 107 months . . . . . . . . 1.300%
107 months to less than 119 months. . . . . . . . 1.400%
119 months to less than 131 months. . . . . . . . 1.500%
131 months to less than 143 months. . . . . . . . 1.600%
143 months to less than 179 months. . . . . . . . 1.750%
179 months to less than 239 months . . . . . . . 2.000%
239 months to 360 months. . . . . . . . . . . . . 2.500%
EXHIBIT B
GENERAL MOTORS ACCEPTANCE CORPORATION
$8,000,000,000
SMARTNOTESSM
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
SmartNotesSM, Due from Nine Months to Thirty Years from Date of Issue are
offered on a continuing basis by General Motors Acceptance Corporation. The
Notes will be offered by ABN AMRO Financial Services, Inc. (the "Purchasing
Agent"), X.X. Xxxxxxx & Sons, Inc., Xxxxxx Xxxxx & Co., L.P., Fidelity Capital
Markets, a division of National Financial Services LLC, Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, Prudential
Securities, Xxxxxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxxx & Co., Inc., and UBS Xxxxx
Xxxxxx Inc.(collectively, the "Agents") pursuant to a Selling Agent Agreement
among the Company and the Agents dated as of the date hereof (the "Selling
Agreement") and one or more terms agreements substantially in the form attached
to the Selling Agreement as Exhibit C (each a "Terms Agreement"). The Notes are
being resold by the Purchasing Agent (and by any Agent that purchases them from
the Purchasing Agent) to (i) customers of the Agents or (ii) selected
broker-dealers (the "Selling Group") for distribution to their customers
pursuant to a Master Selected Dealer Agreement (a "Dealer Agreement") attached
hereto substantially in the representative form of Exhibit E. The Agents have
agreed to use their reasonable best efforts to solicit purchases of the Notes.
The Notes will be unsecured and unsubordinated debt and have been registered
with the Securities and Exchange Commission (the "Commission"). 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 Global Note will bear an original issue date (the
"Original Issue Date"). The Original Issue Date shall
remain the same for all Notes subsequently issued upon
transfer, exchange or substitution of an original Note
regardless of their dates of authentication.
Identification
Numbers: The Company has received from the CUSIP Service Bureau (the
"CUSIP Service Bureau") of Standard & Poor's Corporation
("Standard & Poor's") one series of CUSIP numbers consisting
of approximately 900 CUSIP numbers for future assignment to
Global Notes. The Company will provide DTC and the Trustee
with a list of such CUSIP numbers. The Company will assign
CUSIP numbers as described below under Settlement Procedure
"B". DTC will notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Company has assigned to Global Notes.
The Company will reserve additional CUSIP numbers when
necessary for assignment to Global Notes and will provide
the Trustee and DTC with the list of additional CUSIP
numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes will be
issued only in fully registered form without coupons. Each
Global Note will be registered in the name of Cede & Co., as
nominee for DTC, on the Note Register maintained under the
Indenture by the Trustee. The beneficial owner of a Note (or
one or more indirect participants in DTC designated by
such owner) will designate one or more participants in DTC
(with respect to such Note, the "Participants") to act as
agent or agents for such owner in connection with the book-
entry system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to such
beneficial owner of such Note in the account of such
Participants. The ownership interest of such beneficial owner
in such Note will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers: Transfers of interests in a Global Note will be accomplished by
book entries made by DTC and, in turn, by Participants (and
in certain cases, one or more indirect participants in
DTC) acting on behalf of beneficial transferors and transferees
of such interests.
Exchanges: The Trustee, at the Company's request, may deliver to DTC
and the CUSIP Service Bureau at any time a written notice
of consolidation specifying (a) the CUSIP numbers of two or
more Global Notes 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 $400,000,000 in
aggregate principal or face amount, one replacement Global Note
will be authenticated and issued to represent each
$400,000,000 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 $400,000,000. If
one or more Notes having an aggregate principal or face
amount in excess of $400,000,000 would, but for the preceding
sentence, be represented by a single Global Note, then one
Global Note will be issued to represent each $400,000,000
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 third month (or the next Business
Day), commencing in the third succeeding calendar month
following the month in which the Note is issued. In the case
of a Note that provides for semi-annual interest payments,
the Interest Payment dates shall be the fifteenth day of
each sixth month (or the next Business Day), commencing in
the sixth succeeding calendar month following the month in
which the Note is issued. In the case of a Note that
provides for annual interest payments, the Interest Payment
Date shall be the fifteenth day of every twelfth month (or the
next Business Day), commencing in the twelfth succeeding
calendar month following the month in which the Note is
issued. The Regular Record Date with respect to any Interest
Payment Date shall be the first day of the calendar month
in which such Interest Payment Date occurred, except that the
Regular Record Date with respect to the final Interest Payment
Date shall be the final Interest Payment Date.
Each payment of interest on a Note shall include accrued
interest from and including the Issue Date or from and
including the last day in respect of which interest has been
paid (or duly provided for), as the case may be, to, but
excluding, the Interest Payment Date or Maturity Date, as the
case may be.
Calculation
of Interest: Interest on the Notes (including interest for partial periods)
will be calculated on the basis of a 360-day year of twelve
30-day months. (Examples of interest calculations are as
follows: October 1, 2001 to April 1, 2002 equals 6 months and
0 days, or 180 days; the interest paid equals 180/360
times the annual rate of interest times the principal amount
of the Note. The period from December 3, 2001 to April 1,
2002 equals 3 months and 28 days, or 118 days; the interest
payable equals 118/360 times the annual rate of interest times
the principal amount of the Note.)
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 Maturity Date or as soon as possible
thereafter, the Trustee will make payment to DTC in accordance
with existing arrangements between DTC and the Trustee, in
funds available for immediate use by DTC, each payment
of interest, principal and premium, if any, due on a
Global Note on such date. On each Interest Payment Date
(other than on the Maturity Date) the Trustee will pay DTC
such interest payments in same-day funds in accordance
with existing arrangements between the Trustee and DTC.
Thereafter, on each such date, DTC will pay, in accordance
with its SDFS operating procedures then in effect, such
amounts in funds available for immediate use to the
respective Participants with payments in amounts proportionate
to their respective holdings in principal amount of
beneficial interest in such Global Note as are recorded in
the book-entry system maintained by DTC. Neither the
Company nor the Trustee shall have any direct
responsibility or liability for the payment by DTC of the
principal of, or premium, if any, or interest on, the Notes
to such Participants.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Note will be determined and withheld by the Participant,
indirect participant in DTC or other person responsible for
forwarding payments and materials directly to the beneficial
owner of such Note.
Procedure for
Rate Setting
and Posting: The Company and the Purchasing Agent will discuss, from
time to time, the aggregate principal amounts of, the
Maturities, the Issue Price and the interest rates to be
borne by Notes that may be sold as a result of the
solicitation of orders by the Agents. If the Company decides
to set interest rates borne by any Notes in respect of
which the Agents are to solicit orders (the setting of such
interest rates to be referred to herein as "Posting") or if
the Company decides to change interest rates previously posted
by it, it will promptly advise the Purchasing Agent of the
prices and interest rates to be posted. The Purchasing Agent
in turn will advise the Agents and Selling Group Members.
The Company will assign a separate CUSIP number for each
tranche of Notes to be posted, and will so advise and
notify the Trustee and Purchasing Agent of said
assignment by telephone and/or by telecopier or other form of
electronic transmission. The Purchasing Agent will, in turn,
include the assigned CUSIP number on all Posting notices
communicated to the Agents and Selling Group members.
Offering of
Notes: In the event that there is a Posting, the Purchasing Agent
will communicate to each of the Agents and Selling Group
members the aggregate principal amount and Maturities of,
along with the interest rates to be borne by, each tranche of
Notes that is the subject of the Posting. Thereafter, the
Purchasing Agent, along with the other Agents and the Selling
Group, will solicit offers to purchase the Notes accordingly.
Purchase of
Notes by the
Purchasing
Agent: 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.
J. 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 Selling Agent Agreement,
the Company will reimburse the Agent on an equitable basis
for its loss of the use of funds during the period when they
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Note, DTC may take any actions in accordance with
its SDFS operating procedures then in effect. In the event of a
failure to settle with respect to one or more, but not all, of
Notes that were to have been represented by a Global Note, the
Trustee will provide, in accordance with Settlement Procedures
"D" and "E", for the authentication and issuance of a Global
Note representing the other Notes to have been represented by
such Global Note and will make appropriate entries in its
records.
Procedure for
Rate Changes: Each time a decision has been reached to change rates,
the Company will promptly advise the Purchasing Agent of the
new rates, who will forthwith advise the Agents and Selling
Group Members and will suspend solicitation of purchases of
Notes at the prior rates. The Purchasing Agent may telephone
the Company with recommendations as to the changed interest
rates.
Suspension of
Solicitation,
Amendment or
Supplement: Subject to the Company's representations, warranties and
covenants contained in the Selling Agent Agreement, the
Company may instruct the Agents to suspend at any time for any
period of time or permanently, the solicitation of orders to
purchase Notes. Upon receipt of such instructions (which may
be given orally), each Agent will forthwith suspend
solicitation until such time as the Company has advised it that
solicitation of purchases may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and the Trustee whether such orders may be
settled and whether copies of the Prospectus as in effect at
the time of the suspension may be delivered in connection with
the settlement of such orders. The Company will have the
sole responsibility for such decision and for any arrangements
which may be made in the event that the Company determines that
such orders may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement the Registration
Statement or the Prospectus, it will promptly advise the Agents
and furnish the Agents and the Trustee with the proposed
amendment or supplement and with such certificates and opinions
as are required, all to the extent required by and in accordance
with the terms of the Selling Agent Agreement. Subject to the
provisions of the Selling Agent Agreement, the Company may file
with the Commission any supplement to the Prospectus relating to
the Notes. The Company will provide the Agents and the Trustee
with copies of any such supplement, and confirm to the Agents
that such supplement has been filed with the Commission.
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the Trustee to
risk or expend its own funds in connection with any payment to
the Company, or the Agents or the purchasers, it
being understood by all parties that payments made by the
Trustee to either the Company or the Agents shall be
made only to the extent that funds are provided to the
Trustee for such purpose.
Advertising
Costs: The Company shall have the sole right to approve the form
and substance of any advertising an Agent may initiate in
connection with such Agent's solicitation to purchase the Notes.
The expense of such advertising will be solely the
responsibility of such Agent, unless otherwise agreed to by the
Company. The Company agrees, with prior written approval in each
instance, that the Purchasing Agent may utilize the Company's
name, logo and service xxxx to identify the Company as a member
of the Direct Access Notes Program in the Purchasing Agent's
general materials and marketing objectives relating to the
Direct Access Notes Program.
EXHIBIT C
GENERAL MOTORS ACCEPTANCE CORPORATION
SMARTNOTESSM
TERMS AGREEMENT
, 200_
General Motors Acceptance Corporation
000 Xxxxxxxxxxx Xxxxxx
XX: 482-B12-C24
Detroit, Michigan 48265-2000
Attention: U.S. Borrowings
The undersigned agrees to purchase [as Principal] [as Agent] the following
aggregate principal amount of Notes: $
The terms of such Notes shall be as follows:
CUSIP Number: _______
Interest Rate: %
---
Maturity Date:
----------------
Price to Public:
------------
Agent's Concession: %
---
Settlement Date, Time
and Place:
------------------
Survivor's Option:_________
Interest Payment Dates:
-----------
Optional Redemption, if any: ______
Initial Redemption Date: ___________
Redemption Price: Initially __% of Principal Amount and declining
by __% of the Principal Amount on each anniversary of the Initial
Redemption Date until the Redemption Price is 100% of the Principal
Amount.
[Any other terms and conditions agreed
to by such Agent and the Company]
ABN AMRO Financial Services, Inc.
By:_______________________
Title:______________________
ACCEPTED:
GENERAL MOTORS ACCEPTANCE CORPORATION
By:______________________________
Title:_____________________________
Exhibit D
Form of Pricing Supplement
Pricing Supplement No. Trade Date:
------------------------------------------------------
(To Prospectus dated ) Issue Date:
The date of this Pricing Supplement is (date)
---------------------- --------------- ------------- ---------- -------------- ---------------- ------------ -----------------------
CUSIP Stated Subject to
or Interest Maturity Price Payment Survivor's Redemption
Common Code Rate toPublic Selling Frequency Option Date and terms of
(1) Concession (Yes/No) 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.
{For Zero Coupon Notes} The yield to maturity for this Zero Coupon Notes is
dependent on the purchase price as determined by prevailing market prices at the
time of purchase. See confirmation statement for exact price and yield figures.
{For Original Issue Discount Notes} This Note is issued with original issue
discount and is subject to the tax provisions governing such debt instruments.
See the prospectus for detailed discussion of such provisions.
EXHIBIT E
Representative Form of Master Selected Dealer Agreement
[Name of Broker-Dealer]
[Broker-Dealer's Address]
Dear Selected Dealer:
In connection with public offerings of securities after the date hereof for
which we are acting as manager of an underwriting syndicate or are otherwise
responsible for the distribution of securities to the public by means of an
offering of securities for sale to selected dealers, you may be offered the
right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. Applicability of this Agreement. The terms and conditions of this
Agreement shall be applicable to any public offering of securities
("Securities") pursuant to a registration statement filed under the Securities
Act of 1933 (the "Securities Act") or exempt from registration thereunder (other
than a public offering of Securities effected wholly outside the United States
of America), wherein ABN AMRO Financial Services, Inc. (acting for its own
account or for the account of any underwriting or similar group or syndicate) is
responsible for managing or otherwise implementing the sale of the Securities to
selected broker-dealers ("Selected Dealers") and has expressly informed you that
such terms and conditions shall be applicable. Any such offering of Securities
to you as a Selected Dealer is hereinafter called an "Offering". In the case of
any Offering where we are acting for the account of any underwriting or similar
group or syndicate ("Underwriters"), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters, including, in
the case of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any Offering will be
subject to delivery of the Securities and their acceptance by us and any other
Underwriters, may be subject to the approval of all legal matters by counsel and
the satisfaction of other conditions, and may be made on the basis of
reservation of Securities or an allotment against subscription. We will advise
you by telegram, telex or other form of written communication ("Written
Communication", which term, in the case of any Offering described in Section
3(a) or 3(b) hereof, may include a prospectus or offering circular) of the
particular method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date referred to in
Section 3(c) hereof) of any Offering in which you are invited to participate. To
the extent such supplementary terms and conditions are inconsistent with any
provision herein, such terms and conditions shall supersede any such provision.
Unless otherwise indicated in any such Written Communication, acceptances and
other communications by you with respect to an Offering should be sent to ABN
AMRO Financial Services, Inc., 000 Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000 (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 business day's
prior notice to you, by certified or official bank check, in an amount equal to
the Public Offering Prices (as hereinafter defined) or, if we shall so advise
you, at such Public Offering Price less the Concession (as hereinafter defined),
payable in immediately available funds to the order of ABN AMRO Financial
Services, Inc., against delivery of the Securities. If Securities are purchased
and paid for at such Public Offering Price, such Concession will be paid after
the termination of the provisions of Section 3(c) hereof with respect to such
Securities. Notwithstanding the foregoing, unless notified otherwise by us,
payment for and delivery of Securities purchased by you shall be made through
the facilities of The Depository Trust Company, if you are a member, unless you
have otherwise notified us prior to the date specified in a Written
Communication to you from us or, if you are not a member, settlement may be made
through a correspondent who is a member pursuant to instructions which you will
send to us prior to such specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of Securities that
are registered under the Securities Act ("Registered Offering"), we shall
provide you with such number of copies of each preliminary prospectus and of the
final prospectus relating thereto as you may reasonably request for the purposes
contemplated by the Securities Act and the Securities Exchange Act of 1934 (the
"Exchange Act") and the applicable rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder. You represent and warrant
that you are familiar with Rule 15c2-8 under the Exchange Act relating to the
distribution of preliminary and final prospectuses and agree that you will
comply therewith. You agree to make a record of your distribution of each
preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, you will, upon our request, promptly forward copies
thereof to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to a
prospectus or by any Underwriter to give any information or to make any
representation not contained in the prospectus in connection with the sale of
such Securities.
(b) Offerings Pursuant to Offering Circular. In the case of any Offering of
Securities, other than a Registered Offering, which is made pursuant to an
offering circular or other document comparable to a prospectus in a Registered
Offering, including, without limitation, an Offering of "exempted securities" as
defined in Section 3(a)(12) of the Exchange Act (an "Exempted Securities
Offering"), we shall provide you with such number of copies of each preliminary
offering circular and of the final offering circular relating thereto as you may
reasonably request. You agree that you will comply with the applicable Federal
and state laws, and the applicable rules and regulations of any regulatory body
promulgated thereunder, governing the use and distribution of offering circulars
by brokers or dealers. You agree that in purchasing Securities pursuant to an
offering circular you will rely upon no statements whatsoever, written or oral,
other than the statements in the final offering circular delivered to you by us.
You will not be authorized by the issuer or other seller of Securities offered
pursuant to an offering circular or by any Underwriter to give any information
or to make any representation not contained in the offering circular in
connection with the sale of such Securities.
(c) Offer and Sale to the Public. With respect to any Offering of
Securities, we will inform you by a Written Communication of the public offering
price, the selling concession, the reallowance (if any) to broker-dealers and
the time when you may commence selling Securities to the public. After such
public offering has commenced, we may change the public offering price, the
selling concession and the reallowance (if any) to broker-dealers. The offering
price, selling concession and reallowance (if any) to broker-dealers at any time
in effect with respect to an Offering are hereinafter referred to, respectively,
as the "Public Offering Price", the "Concession" and the "Reallowance". With
respect to each Offering of Securities, until the provisions of this Section
3(c) shall be terminated pursuant to Section 4 hereof, you agree to offer
Securities to the public at no more than the Public Offering Price. If notified
by us, you may sell securities to the public at a lesser negotiated price than
the Public Offering Price, but in an amount not to exceed the Concession. If a
Reallowance is in effect, a reallowance from the Public Offering Price not in
excess of such Reallowance may be allowed as consideration for services rendered
in distribution to broker-dealers (i) who are actually engaged in the investment
banking or securities business, (ii) who execute the written agreement
prescribed by Rule 2740(c) of the Conduct Rules of the National Association of
Securities Dealers. Inc. (the "NASD") and (iii) who, if they are foreign banks,
broker-dealers or institutions not eligible for membership in the NASD,
represent to you that they will promptly reoffer such Securities at the Public
Offering Price and will abide by the conditions with respect to foreign banks,
broker-dealers and institutions set forth in Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may, with respect
to any Offering, be authorized to over-allot in arranging sales to Selected
Dealers, to purchase and sell Securities for long or short account and to
stabilize or maintain the market price of the Securities. You agree not to
purchase and sell Securities for which an order from a client has not been
received without our consent in each instance. You further agree that, upon our
request at any time and from time to time prior to the termination of the
provisions of Section 3(c) hereof with respect to any Offering, you will report
to us the amount of Securities purchased by you pursuant to such Offering which
then remain unsold by you and will, upon our request at any such time, sell to
us for our account or the account of one or more Underwriters such amount of
such unsold Securities as we may designate at the Public Offering Price less an
amount to be determined by us not in excess of the Concession. If, prior to the
later of (i) the termination of the provisions of Section 3(c) hereof with
respect to any Offering or (ii) the covering by us of any short position created
by us in connection with such Offering for our account or the account of one or
more Underwriters, we purchase or contract to purchase for our account or the
account of one or more Underwriters in the open market or otherwise any
Securities purchased by you under this Agreement as part of such Offering, you
agree to pay us on demand an amount equal to the Concession with respect to such
Securities (unless you shall have purchased such Securities pursuant to Section
2 hereof at the Public Offering Price in which case we shall not be obligated to
pay such Concession to you pursuant to Section 2) plus transfer taxes and
broker's commissions or dealer's xxxx-up, if any, paid in connection with such
purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually engaged in the
investment banking or securities business. In addition, you further represent
and warrant that you are either (i) a member in good standing of the NASD, (ii)
a foreign bank, broker-dealer or institution not eligible for membership in the
NASD which agrees not to make any sales within the United States, its
territories or its possessions or to persons who are citizens thereof or
residents therein, and in making any other sales to comply with the NASD's
interpretation with respect to free riding and withholding, or (iii), solely in
connection with an Exempted Securities Offering, a bank, as defined in Section
3(a)(6) of the Exchange Act, that does not otherwise fall within provision (i)
or (ii) of this sentence (a "Bank"). You further represent, by your
participation in an Offering, that you have provided to us all documents and
other information required to be filed with respect to you, any related person
or any person associated with you or any such related person pursuant to the
supplementary requirements of the NASD's interpretation with respect to review
of corporate financing as such requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the Securities
wherein a selling Concession, discount or other allowance is received or
granted, (1) you will comply with the provisions of Rule 2740 of the Conduct
Rules of the NASD, (2) if you are a non-NASD member broker or dealer in a
foreign country, you will also comply (a), as though you were an NASD member,
with the provision of Rules 2730, 2740 and 2750 of the Conduct Rules and (b)
with Rule 2420 of the Conduct Rules as that Rule applies to a non-NASD member
broker or dealer in a foreign country and (3), in connection with an Exempted
Securities Offering, if you are a Bank, you will also comply, as though you were
an NASD member, with the provision of Rules 2730, 2740 and 2750 of the Conduct
Rules.
You further agree that, in connection with any purchase of securities from
us that is not otherwise covered by the terms of this Agreement (whether we are
acting as manager, as a member of an underwriting syndicate or a selling group
or otherwise), if a selling Concession, discount or other allowance is granted
to you, clauses (1), (2) and (3) of the preceding paragraph will be applicable.
(f) Relationship among Underwriters and Selected Dealers. We may buy
Securities from or sell Securities to any Underwriter or Selected Dealer and the
Underwriters (if any) and the Selected Dealers may purchase Securities from and
sell Securities to each other at the Public Offering Price less all or any part
of the Reallowance. You are not authorized to act as agent for us, any
Underwriter or the issuer or other seller of any Securities in offering
Securities to the public or otherwise. Neither we nor any Underwriter shall be
under any obligation to you except for obligations assumed hereby or in any
Written Communication from us in connection with any Offering. Nothing contained
herein or in any Written Communication from us shall constitute the Selected
Dealers an association or partners with us or any Underwriter or with one
another. If the Selected Dealers, among themselves or with the Underwriters,
should be deemed to constitute a partnership for Federal income tax purposes,
then you elect to be excluded from the application of Subchapter K, Chapter 1,
Subtitle A of the Internal Revenue Code of 1986 and agree not to take any
position inconsistent with that election. You authorize us, in our discretion,
to execute and file on your behalf such evidence of that election as may be
required by the Internal Revenue Service. In connection with any Offering, you
shall be liable for your proportionate amount of any tax, claim, demand or
liability that may be asserted against you alone or against one or more Selected
Dealers participating in such Offering, or against us or the Underwriters, based
upon the claim that the Selected Dealers, or any of them, constitute an
association, an unincorporated business or other entity, including, in each
case, your proportionate amount of any expense incurred in defending against any
such tax, claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform you as to any
advice we have received from counsel concerning the jurisdictions in which
Securities have been qualified for sale or are exempt under the securities or
blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
(h) Compliance with Law. You agree that in selling Securities pursuant to
any Offering (which agreement shall also be for the benefit of the issuer or
other seller of such Securities) you will comply with all applicable laws, rules
and regulations, including the applicable provisions of the Securities Act and
the Exchange Act, the applicable rules and regulations of the Securities and
Exchange Commission thereunder, the applicable rules and regulations of the
NASD, the applicable rules and regulations of any securities exchange having
jurisdiction over the Offering and the applicable laws, rules and regulations
specified in Section 3(b) hereof.
(i) You are aware that other than registering the Notes under the
Securities Act, no action has been or will be taken by the Company that would
permit the offer or sale of the Notes or possession or distribution of the
Prospectus or any other offering material relating to the Notes in any
jurisdiction where action for that purpose is required. Accordingly, you agree
that you will observe all applicable laws and regulations in each jurisdiction
in or from which you may directly or indirectly acquire, offer, sell or deliver
Notes or have in your possession or distribute the Prospectus or any other
offering material relating to the Notes and you will obtain any consent,
approval or permission required by you for the purchase, offer or sale by you of
Notes under the laws and regulations in force in any such jurisdiction to which
you are subject or in which you make such purchase, offer or sale. Neither the
Company nor any other Agent shall have any responsibility for determining what
compliance is necessary by you or for your obtaining such consents, approvals or
permissions. You further agree that you will take no action that will impose any
obligations on the Company or the other Agents. Subject as provided above, you
shall, unless prohibited by applicable law, furnish to each person to whom you
offer, sell or deliver Notes a copy of the Prospectus (as then amended or
supplemented) or (unless delivery of the Prospectus is required by applicable
law) inform each such person that a copy thereof (as then amended or
supplemented) will be made available upon request. You are not authorized to
give any information or to make any representation not contained in the
Prospectus or the documents incorporated by reference or specifically referred
to therein in connection with the offer and sale of the Notes.
(4) Indemnification. You agree to indemnify and hold harmless ABN AMRO
Financial Services, Inc., the issuer of the Securities, each person, if any, who
controls (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) ABN AMRO Financial Services, Inc. or the issuer
of the Securities, and their respective directors, officers, and employees from
and against any and all losses, liabilities, costs or claims (or actions in
respect thereof) (collectively, "Losses") to which any of them may become
subject (including all reasonable costs of investigating, disputing or defending
any such claim or action), insofar as such Losses arise out of or are in
connection with the breach of any representation, warranty, or agreement made by
you herein.
If any claim, demand, action or proceeding (including any governmental
investigation) shall be brought or alleged against an indemnified party in
respect of which indemnity is to be sought against an indemnifying party, the
indemnified party shall promptly notify the indemnifying party in writing, and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnified party may designate in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the reasonable fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the indemnifying party has failed within a
reasonable time to retain counsel reasonably satisfactory to such indemnified
party or (iii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is agreed that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate law firm (in addition to local counsel where
necessary) for all such indemnified parties. Such firm shall be designated in
writing by the indemnified party. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
The indemnity agreements contained in this Section and the representations
and warranties by you in this Agreement, shall remain operative and in full
force and effect regardless of: (i) any termination of this Agreement; (ii) any
investigation made by an indemnified party or on such party's behalf or any
person controlling an indemnified party or by or on behalf of the indemnifying
party, its directors or officers or any person controlling the indemnifying
party; and (iii) acceptance of and payment for any Securities.
5. Termination, Supplements and Amendments. This Agreement may be
terminated by Written Communication to the other affected party or parties.
Until so terminated, this Agreement shall continue in full force and effect.
This Agreement may be supplemented or amended by us by written notice thereof to
you, and any such supplement or amendment to this Agreement shall be effective
with respect to any Offering to which this Agreement applies after the date of
such supplement or amendment. Each reference to "this Agreement" herein shall,
as appropriate, be to this Agreement as so amended and supplemented. The terms
and conditions set forth in Section 3(c) hereof with regard to any Offering will
terminate at the close of business on the 30th day after the commencement of the
public offering of the Securities to which such Offering relates, but in our
discretion may be extended by us for a further period not exceeding 30 days and
in our discretion, whether or not extended, may be terminated at any earlier
time.
6. Successors and Assigns. This Agreement shall be binding on, and inure to
the benefit of, the parties hereto and other persons specified in Section 1
hereof, and the respective successors and assigns of each of them.
7. Governing Law. This Agreement and the terms and conditions set forth
herein with respect to any Offering together with such supplementary terms and
conditions with respect to such Offering as may be contained in any Written
Communication from us to you in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of New York.
Please confirm by signing and returning to us the enclosed copy of this
Agreement that your subscription to, or your acceptance of any reservation of,
any Securities pursuant to an Offering shall constitute (i) acceptance of and
agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 4 hereof) together with and subject to any
supplementary terms and conditions contained in any Written Communication from
us in connection with such Offering, all of which shall constitute a binding
agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you have requested and received from us sufficient copies of
the final prospectus or offering circular, as the case may be, with respect to
such Offering in order to comply with your undertakings in Section 3(a) or 3(b)
hereof.
Very truly yours,
ABN AMRO FINANCIAL SERVICES, INC.
By:
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Name:
Title:
CONFIRMED: ________ __, 2001
(NAME OF BROKER-DEALER)
By:
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Name:
Title:
Master Selected Dealer Agreement-2001
