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Exhibit 1
GENERAL MOTORS ACCEPTANCE CORPORATION
$15,000,000,000
SMARTNOTES(SM)
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
_________ __, 2005
Dear Ladies and Gentlemen:
General Motors Acceptance Corporation, a Delaware corporation
(the
"Company"), proposes to issue and sell up
to $15,000,000,000 aggregate principal
amount of its SmartNotes(SM) Due from Nine
Months to Thirty Years from Date of
Issue (the "Notes") to be issued pursuant
to the provisions of an Indenture
dated as of September 24, 1996, as
supplemented from time to time, between the
Company and JPMorgan Chase Bank, N.A., as
Trustee (the "Indenture"). The terms
of the Notes are described in the
Prospectus referred to below.
Subject to the terms and conditions contained in this Selling
Agent
Agreement (the "Agreement"), the Company
hereby (1) appoints you as agent of the
Company (the "Agent(s)") 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 LaSalle 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.
333-XXXXXX 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
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Indenture has been qualified under the
Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). Such
registration statement and the prospectus
filed pursuant to Rule 424 under the
Securities Act, including all documents
incorporated therein by reference, as from
time to time amended or supplemented,
including any Pricing Supplement, are
referred to herein as the "Registration
Statement" and the "Prospectus,"
respectively.
II.
Your
obligations hereunder are subject to the following conditions,
each of which shall be met on such date as
you and the Company shall
subsequently fix for the commencement of
your obligations hereunder (the
"Commencement Date"):
(a)(i) No litigation or proceeding shall be threatened or pending
to
restrain or enjoin the issuance or delivery
of the Notes, or which in any way
questions or affects the validity of the
Notes and (ii) no stop order suspending
the effectiveness of the Registration
Statement shall be in effect, and no
proceedings for such purpose shall be
pending before or threatened by the
Commission and there shall have been no
material adverse change not in the
ordinary course of business in the
consolidated financial condition of the
Company and its subsidiaries, taken as a
whole, from that set forth in the
Registration Statement and the Prospectus;
and you shall have received on the
Commencement Date a certificate dated such
Commencement Date and signed by an
executive officer of the Company to the
foregoing effect. The officer making
such certificate may rely upon the best of
his knowledge as to proceedings
threatened.
(b) You shall have received a favorable opinion of the
Assistant
General Counsel of, or counsel to the
Company, dated such Commencement Date, to
the effect set forth in Exhibit A.
(c) You shall have received on the Commencement Date a letter dated
the
Commencement Date from Deloitte &
Touche LLP, independent auditors, containing
statements and information of the type
ordinarily included in auditors' "comfort
letters" to underwriters with respect to
the financial statements and certain
financial information contained in or
incorporated by reference into the
Registration Statement and the Prospectus
relating to the Notes.
(d) You shall have received a favorable opinion of Davis Polk
&
Wardwell, counsel for the Agents, dated
such Commencement Date, to the effect
set forth in Exhibit B.
The obligations of the Purchasing Agent to purchase Notes as
principal,
both under this Agreement and under any
Terms Agreement (as defined in Section V
hereof) are subject to the conditions that
(i) no litigation or proceeding shall
be threatened or pending to restrain or
enjoin the issuance or delivery of the
Notes, or which in any way questions or
affects the validity of the Notes, (ii)
no stop order suspending the effectiveness
of the Registration Statement shall
be in effect, and no proceedings for such
purpose shall be pending before or
threatened by the Commission and (iii)
there shall have been no material adverse
change not in the ordinary course of
business in the consolidated financial
condition of the Company and its
subsidiaries, taken as a whole, from that set
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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.
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(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 reasonable 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
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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 C
hereto (the "Concession"); provided,
however, that the Concession shall not
exceed the amounts set forth in the
Prospectus. The Purchasing Agent and the
other Agents will share the
above-mentioned Concession in such
proportions as they and the Company may
agree.
Unless otherwise authorized by the Company, all Notes shall be sold
to
the public at a purchase price not to
exceed 100% of the principal amount
thereof, plus accrued interest, if any. We
may also issue Notes that bear a zero
interest rate and are issued at a
substantial discount from the principal amount
payable at the Maturity Date (a
"Zero-Coupon Note"). Such Zero-Coupon Notes
shall be sold to the public at a purchase
price no greater than an amount,
expressed as a percentage of the principal
face amount of such Notes, equal to
the net proceeds to the Company on the sale
of such Notes, plus the Concession,
plus accrued interest, if any. The actual
purchase price paid by investors for
any Note shall be determined by prevailing
market prices at the time of
purchase. Such purchase price shall be set
forth in the confirmation statement
of the Selling Group member responsible for
such sale, and delivered to the
purchaser along with a copy of the
Prospectus (if not previously delivered) and
Pricing Supplement.
(b) Procedural details relating to the issue and delivery of, and
the
solicitation of purchases and payment for,
the Notes are set forth in the
Administrative Procedures attached hereto
as Exhibit D (the "Procedures"), as
amended from time to time. The provisions
of the Procedures shall apply to all
transactions contemplated hereunder other
than those made pursuant to a Terms
Agreement. You and the Company each agree
to perform the respective duties and
obligations specifically provided to be
performed by each in the Procedures as
amended from time to time. The Procedures
may only be amended by written
agreement of the Company and you.
(c) You are aware that other than registering the Notes under
the
Securities Act, no action has been or will
be taken by the Company that would
permit the offer or sale of the Notes or
possession or distribution of the
Prospectus or any other offering material
relating to the Notes in any
jurisdiction where action for that purpose
is required. Accordingly, you agree
that you will observe all applicable laws
and regulations in each jurisdiction
in or from which you may directly or
indirectly acquire, offer, sell or deliver
Notes or have in your possession or
distribute the Prospectus or any other
offering material relating to the Notes and
you will obtain any consent,
approval or permission required by you for
the purchase, offer or sale by you of
Notes under the
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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 web site
www.SmartNotes.com.
V.
Each sale of Notes shall be made in accordance with the terms of
this
Agreement and a separate agreement to be
entered into which will provide for the
sale of such Notes to, and the purchase and
reoffering thereof, by the
Purchasing Agent as principal. Each such
separate agreement (which may be an
oral agreement and confirmed in writing as
described below between the
Purchasing Agent and the Company) is herein
referred to as a "Terms Agreement".
A Terms Agreement may also specify certain
provisions relating to the reoffering
of such Notes by the Purchasing Agent. The
Purchasing Agent's agreement to
purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made
on the basis of the representations,
warranties and agreements of the Company
herein contained and shall be subject to
the terms and conditions herein set
forth. Each Terms Agreement, whether oral
(and confirmed in writing which may be
by facsimile transmission) or in writing,
shall describe the Notes to be
purchased pursuant thereto by the
Purchasing Agent as principal, and may
specify, among other things, the principal
amount of Notes to be purchased, the
interest rate or formula and maturity date
or dates of such Notes, the interest
payment dates, if any, the price to be paid
to the Company for such Notes, the
initial public offering price at which the
Notes are proposed to be reoffered,
and the time and place of delivery of and
payment for such Notes (the
"Settlement Date"), whether the Notes
provide for a Survivor's Option or for
optional redemption by the Company and on
what terms and conditions, and any
other relevant terms. In connection with
the resale of the Notes purchased,
without the consent of the Company you are
not authorized to appoint subagents
or to engage the service of any other
broker or dealer, nor may you reallow any
portion of the discount paid to you by the
Company; provided, however, you may
offer Notes you have purchased as principal
to any NASD dealer in good standing
at a discount and unless otherwise
specified in the applicable pricing
supplement, such discount allowed to any
dealer shall not, during the
distribution of the Notes, be in excess of
the discount to be received by you
from the Purchasing Agent. Terms
Agreements, each of which shall be
substantially in the form of Exhibit E
hereto, or as otherwise agreed to between
the
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Company and the Purchasing Agent, may take
the form of an exchange of any
standard form of written telecommunication
between the Purchasing Agent and the
Company.
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VI.
The Company represents and warrants to the Agents that as of each
date
on which the Company accepts an offer to
purchase Notes (including any purchase
by the Purchasing Agent as principal,
pursuant to a Terms Agreement or
otherwise), as of each date the Company
issues and sells Notes and as of each
date the Registration Statement or the
Prospectus is amended or supplemented:
(i) each document, if any, filed, or to be
filed, pursuant to the Exchange Act
and incorporated by reference in the
Prospectus complied when so filed, or will
comply, in all material respects with such
Act and the rules and regulations
thereunder; (ii) the Registration Statement
(including the documents
incorporated by reference therein), filed
with the Commission pursuant to the
Securities Act relating to the Notes, when
it became effective, did not contain
any untrue statement of a material fact or
omit to state a material fact
required to be stated therein or necessary
to make the statements therein not
misleading; (iii) each Prospectus, if any,
filed pursuant to Rule 424 under the
Securities Act, complied when so filed in
all material respects with such Act
and the applicable rules and regulations
thereunder; (iv) the Registration
Statement and each Prospectus comply and,
as amended or supplemented, if
applicable, will comply in all material
respects with the Securities Act and the
applicable rules and regulations
thereunder; and (v) the Registration Statement
and each Prospectus relating to the Notes
do not and, as amended or
supplemented, if applicable, will not
contain any untrue statement of a material
fact or omit to state a material fact
necessary in order to make the statements
therein, in the light of the circumstances
under which they were made, not
misleading; (vi) that (a) no litigation or
proceeding shall be threatened or
pending to restrain or enjoin the issuance
or delivery of the Notes, or which in
any way questions or affects the validity
of the Notes and (b) no stop order
suspending the effectiveness of the
Registration Statement shall be in effect,
and no proceedings for such purpose shall
be pending before or threatened by the
Commission and there shall have been no
material adverse change not in the
ordinary course of business in the
consolidated financial condition of the
Company and its subsidiaries, taken as a
whole, from that set forth in the
Registration Statement and the Prospectus,
each of which conditions shall be met
on the corresponding Settlement Date; (vii)
no authorization, consent or
approval of, or registration or filing
with, any governmental or public body or
regulatory authority in the United States
is required on the part of the Company
for the issuance of the Notes in accordance
with the Indenture or the sale of
the Notes in accordance with this Agreement
other than the registration of the
Notes under the Securities Act,
qualification of the Indenture under the Trust
Indenture Act and compliance with the
securities or Blue Sky laws of various
jurisdictions; and (viii) the execution and
delivery of the Indenture, the
issuance of the Notes in accordance with
the Indenture and the sale of the Notes
pursuant to this Agreement do not and will
not contravene any provision of
applicable law or result in any violation
by the Company of any of the terms or
provisions of the Certificate of
Incorporation or By-Laws of the Company, or any
indenture, mortgage or other agreement or
instrument by which the Company is
bound. The above representations and
warranties shall not apply to any
statements or omissions made in the
Prospectus in reliance upon and in
conformity with information furnished in
writing to the Company by you expressly
for use therein. Each acceptance by the
Company of an offer for the purchase of
Notes and each issuance of Notes shall be
deemed an affirmation by the Company
that the foregoing representations and
warranties are true and correct at the
time, as the case may be, of
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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; provided that the
foregoing indemnity with respect to any
Prospectus shall not inure to the
benefit of any Agent from whom the person
asserting any such losses, claims,
damages or liabilities purchased Notes, or
any person controlling such Agent, if
a copy of the Prospectus (as then amended
or supplemented if the
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Company shall have furnished any amendments
or supplements thereto), was not
sent or given by or on behalf of such Agent
to such person, if required by law
so to have delivered, at or prior to the
written confirmation of the sale of the
Notes to such person, and if the Prospectus
(as so amended or supplemented)
would have cured the defect giving rise to
such losses, claims, damages or
liabilities unless such failure is the
result of noncompliance by the Company
with its obligations under Article III(c)
hereof.
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
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satisfactory to such indemnified party or
(iii) the named parties to any such
proceeding (including any impleaded
parties) include both the indemnifying party
and the indemnified party and
representation of both parties by the same counsel
would be inappropriate due to actual or
potential differing interests between
them. It is agreed that the indemnifying
party shall not, in connection with any
proceeding or related proceedings in the
same jurisdiction, be liable for the
reasonable fees and expenses of more than
one separate law firm (in addition to
local counsel where necessary) for all such
indemnified parties. Such firm shall
be designated in writing by the indemnified
party. The indemnifying party shall
not be liable for any settlement of any
proceeding effected without its written
consent, but if settled with such consent
or if there be a final judgment for
the plaintiff, the indemnifying party
agrees to indemnify the indemnified party
from and against any loss or liability by
reason of such settlement or judgment.
No indemnifying party shall, without the
prior written consent of the
indemnified party, effect any settlement of
any pending or threatened proceeding
in respect of which any indemnified party
is entitled to indemnification
hereunder, unless such settlement includes
an unconditional release of such
indemnified party from all liability on
claims that are the subject matter of
such proceeding.
The indemnity agreements contained in this Section VII and the
representations and warranties of the
Company and you in this Agreement, shall
remain operative and in full force and
effect regardless of: (i) any termination
of this Agreement; (ii) any investigation
made by an indemnified party or on
such party's behalf or any person
controlling an indemnified party or by or on
behalf of the indemnifying party, its
directors or officers or any person
controlling the indemnifying party; and
(iii) acceptance of and payment for any
of the Notes.
VIII.
Except as provided in Section V hereof, in soliciting purchases
of
Notes from the Company, you are acting
solely as agent for the Company, and not
as principal. You will make reasonable
efforts to assist the Company in
obtaining performance by each purchaser
whose offer to purchase Notes has been
accepted by the Company, but you shall not
have any liability to the Company in
the event such purchase is not consummated
for any reason, other than to repay
to the Company any commission with respect
thereto. Except pursuant to a Terms
Agreement, under no circumstances shall you
be obligated to purchase any Notes
for your own account.
IX.
This Agreement shall be terminated at any time by either party
hereto
upon the giving of five business days
written notice of such termination to the
other party hereto. In the event of any
such termination, neither party shall
have any liability to the other party
hereto, except for obligations hereunder
which expressly survive the termination of
this Agreement and except that, if at
the time of termination an offer for the
purchase of Notes shall have been
accepted by the Company but the time of
delivery to the purchaser or his agent
of the Note or Notes relating thereto shall
not yet have occurred, the Company
shall have the obligations provided herein
with respect to such Note or Notes.
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<PAGE>
Unless specifically set forth in a Terms Agreement, a Terms
Agreement
shall not be subject to termination. The
termination of this Agreement shall not
require termination of any agreement by the
Purchasing Agent to purchase Notes
as principal, and the termination of any
Terms Agreement shall not require
termination of this Agreement.
If this Agreement is terminated, the last sentence of the
second
paragraph of Section IV(a), Section III(c),
(d) and (e), Section VII, and the
first paragraph of Section XIV shall
survive; provided that if at the time of
termination of this Agreement an offer to
purchase Notes has been accepted by
the Company but the time of delivery to the
purchaser or its agent of such Notes
has not occurred, the provisions of Section
III(a) and (b), Section IV(b) and
Section V shall also survive until time of
delivery.
X.
Except as otherwise specifically provided herein, all
statements,
requests, notices and advices hereunder
shall be in writing, or by telephone if
promptly confirmed in writing, and if to
you shall be sufficient in all respects
if delivered in person or sent by telex,
facsimile transmission (confirmed in
writing), or registered mail to you at your
address, telex or telecopier number
set forth below by your signature and if to
the Company shall be sufficient in
all respects if delivered or sent by
telecopier or registered mail to the
Company at 200 Renaissance Center, Detroit,
Michigan 48265, telecopier number
313-665-6308, 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.
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<PAGE>
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) if the
Company lists Notes on a securities
exchange, the costs and fees of such
listing; and (vi) any fees charged by
rating agencies for the rating of the
Notes.
The Purchasing Agent will pay the reasonable fees and disbursements
of
Davis Polk & Wardwell, counsel for the
Agents (including "Blue Sky" fees and
disbursements).
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:
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<PAGE>
EXHIBIT A
Opinion of Company Counsel
_________ __, 2005
Banc of America Securities LLC
Citigroup Global Markets Inc.
LaSalle Financial Services, Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
RBC Dain Rauscher Inc.
UBS Financial Services Inc.
Wachovia Securities LLC
c/o LaSalle Financial Services, Inc.
327 Plaza Real
Suite 225
Boca Raton, Florida 33432
Ladies and Gentlemen:
I am issuing this letter in my capacity as
Assistant General Counsel for General
Motors Acceptance Corporation (the
"Corporation") in response to the
requirements of the Selling Agent Agreement
dated _________ __, 2005 (the
"Selling Agent Agreement") by and among the
Corporation and LaSalle Financial
Services, Inc., Banc of America Securities
LLC, Citigroup Global Markets Inc.,
L.P., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co.,
Incorporated, RBC Dain Rauscher Inc., UBS
Financial Services Inc. and Wachovia
Securities LLC (the "Agents"), named in the
Selling Agent Agreement. The Selling
Agent Agreement relates to the offering
(the "Offering") of SmartNotes of the
Corporation (the "Offered Securities").
Every term which is defined or given a
special meaning in the Selling Agent
Agreement and which is not given a
different meaning in this letter has the
same meaning whenever it is used in
this letter as the meaning it is given in
the Selling Agent Agreement.
In connection with the preparation of this letter, I have among
other
things read:
(a) the
Registration Statement on Form S-3 (Registration No.
333-XXXXXX) filed by the Corporation with the Securities and
Exchange Commission (the "Commission") for the purpose of
registering the Offering under the Securities Act of 1933, as
amended (the "Securities Act") (which registration statement,
as amended and including the information incorporated therein
by reference, and as constituted at the time it became
effective, is herein called the "Registration Statement");
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<PAGE>
(b) the
Prospectus of the Corporation dated September ___, 2005
(which Prospectus, including the information incorporated
therein by reference, is herein called the "Prospectus");
(c) the
Indenture, dated as of September 24, 1996 (the
"Indenture"), by and between the Corporation and JPMorgan
Chase Bank, N.A., as trustee (the "Trustee"), and the First
Supplemental Indenture thereto, dated January 1, 1998 (the
"First Supplemental Indenture");
(d) an
executed copy of the Selling Agent Agreement;
(e) specimens
of the Offered Securities;
(f) the
corporate proceedings of the Corporation relating to the
execution and delivery of the Indenture, the Selling Agent
Agreement and the Offered Securities;
(g) a copy of
the Certificate of Incorporation of the Corporation,
as amended, certified as of a recent date by the Secretary of
State of Delaware;
(h) a copy of
the By-Laws of the Corporation; and
(i) copies of
all certificates and other documents delivered today
in connection with the consummation of the Offering.
In addition, I have examined and relied on the originals or
copies
certified or otherwise identified to my
satisfaction of all such corporate
records of the Corporation and such other
instruments and certificates of public
officials, officers and representatives of
the Corporation and such other
persons, and I have made such
investigations of law as I have deemed appropriate
as a basis for the opinions expressed
below. I have assumed that there has been
no relevant change or development between
the dates as of which the information
cited in the preceding sentence was given
and the date of this letter and that
the information upon which I have relied is
accurate and does not omit
disclosures necessary to prevent such
information from being misleading.
Subject to the assumptions, qualifications and limitations which
are
identified in this letter, I advise you
that:
(i) the Corporation is validly existing as a corporation and
in good standing and duly incorporated under the laws of the State
of
Delaware and is duly qualified to transact business and is in
good
standing in each jurisdiction in which the conduct of its business
or
the ownership of its property requires such qualification, except
where
the failure to be so qualified or be in good standing, individually
or
in the aggregate, would not have a material adverse effect on
the
Corporation and its subsidiaries taken as a whole;
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<PAGE>
(ii) the Indenture has been duly authorized, executed and
delivered by the Corporation, is a valid and binding agreement of
the
Corporation, enforceable against the Corporation, and has been
duly
qualified under the Trust Indenture Act of 1939, as amended
(the
"TIA");
(iii) the Offered Securities, when executed and authenticated
in accordance with the provisions of the Indenture and delivered to
and
paid for by the Agents as contemplated by the Selling Agent
Agreement,
will be entitled to the benefits of the Indenture and will be valid
and
binding obligations of the Corporation, enforceable against the
Corporation, assuming the due authorization, execution and delivery
by
the
Trustee of the Indenture and the due authentication and delivery
of
the Offered Securities by the Trustee in accordance with the
Indenture;
(iv) the Selling Agent Agreement has been duly authorized,
executed and delivered by the Corporation, is a valid and
binding
agreement of the Corporation and enforceable against the
Corporation;
(v) no authorization, consent or approval of, or registration
or filing with, any governmental or public body or regulatory
authority
is required on the part of the Corporation for the issuance of
the
Offered Securities in accordance with the Indenture or the sale of
the
Offered Securities in accordance with the Selling Agent
Agreement,
other than the registration of the Offered Securities under the
Securities Act, qualification of the Indenture under the TIA,
the
listing of the Offered Securities and compliance with any laws of
any
foreign jurisdiction or the state securities or "blue sky" laws
of
various jurisdictions;
(vi) the issuance of the Offered Securities in accordance with
the Indenture and the sale of the Offered Securities pursuant to
the
Selling Agent Agreement, do not and will not contravene any
provision
of applicable law (except I express no opinion in this paragraph as
to
compliance with any disclosure requirement or any prohibition
against
fraud or misrepresentation or as to whether performance of any
indemnification or contribution provisions would be permitted)
or
result in any violation by the Corporation of any of the terms
or
provisions of the certificate of incorporation or by-laws of
the
Corporation or of any material indenture, mortgage or other
agreement
or instrument known to me, by which the Corporation is bound
(except
that I express no opinion as to compliance with any financial tests
or
cross-default provision in any such agreement);
(vii) the statements in the Prospectus under "Description of
Notes" insofar as such statements constitute summaries of the
documents
or proceedings referred to therein, fairly present in all
material
respects the information called for with respect to such documents
and
proceedings; and
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<PAGE>
(viii) each document filed pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (except as to
financial
statements contained therein, as to which I do not express any
opinion)
and incorporated by reference in the Prospectus complied when so
filed,
or at the time of any amendment, as to form in all material
respects
with the Exchange Act and the rules and regulations thereunder.
With respect to paragraph (viii) above, my opinion is based upon
the
participation by one or more attorneys, who
are members of the General Motors
Acceptance Corporation Legal Staff with
whom I have worked, in the preparation
of the Registration Statement and the
Prospectus and review and discussion of
the contents thereof and upon my general
review and discussion of the answers
made and information furnished therein with
such attorneys, certain officers of
the Corporation and its auditors, but is
without independent check or
verification except as stated herein.
***********
Except as set forth in paragraph (vii) above, I make no
representation
that I have independently verified the
accuracy, completeness or fairness of the
statements contained in the Registration
Statement or the Prospectus or that the
actions taken in connection with the
preparation of the Registration Statement
or the Prospectus were sufficient to cause
the Prospectus or Registration
Statement to be accurate, complete or fair
(including the actions described in
the next paragraph).
I have participated in the preparation of the Registration
Statement
and the Prospectus. During the course of
such preparation, I have examined
various documents, including those listed
at the beginning of this letter, and
have participated in various conferences
with representatives of and other
counsel of the Corporation, and with
representatives of the independent
accountants for the Corporation and
representatives of and counsel to the
Agents, at which conferences the contents
of the Registration Statement and the
Prospectus (and the documents incorporated
therein by reference) were reviewed
and discussed.
Based on my participation in the
conferences and discussions identified above,
my understanding of applicable law and the
experience that I have gained in the
practice thereunder, and relying as to
factual matters to the extent deemed
appropriate by me upon the representations
and statements of officers and other
representatives of the Corporation, and
without independent check or
verification, except as stated, (i) it is
my opinion that each document filed
pursuant to the Securities Exchange Act of
1934, as amended, and incorporated by
reference in the Prospectus, appears on
their face to be appropriately
responsive in all material respects to the
requirements of such Act and the
rules and regulations thereunder, (ii)
nothing has come to my attention that
causes me to believe that, insofar as
relevant to the offering of the Offered
Securities, each part of the Registration
Statement (including the documents
incorporated by reference therein), filed
with the Commission pursuant to the
Securities Act of 1933, as amended,
relating to the Corporation's Offered
Securities, when such part became
effective,
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<PAGE>
contained any untrue statement of a
material fact or omitted to state a material
fact required to be stated therein or
necessary to make the statements therein,
in light of the circumstances under which
they are made, not misleading, (iii)
it is my opinion that the Registration
Statement and the Prospectus appear on
their face to be appropriately responsive
in all material respects to the
requirements of the Securities Act of 1933,
as amended, and the rules and
regulations of the Commission thereunder
and (iv) nothing has come to my
attention that causes me to believe that,
insofar as relevant to the offering of
the Offered Securities, (a) on the date of
the Underwriting Agreement, the
Registration Statement as supplemented by
the Prospectus Supplement, or the
Prospectus contained any untrue statement
of a material fact or omitted to state
a material fact required to be stated
therein or necessary to make the
statements therein not misleading or (b)
the Prospectus contains any untrue
statement of a material fact or omits to
state a material fact necessary in
order to make the statements therein, in
the light of the circumstances under
which they were made, not misleading. In
expressing the foregoing opinion and
belief, I have not been called to pass
upon, and I express no opinion or belief
as to, the financial statements or
financial schedules or other financial or
statistical data included in the
Registration Statement or the Prospectus or the
Statement of Eligibility of the Trustee on
Form T-1 and are not passing on the
adequacy or accuracy of the derivation or
compilation from the Corporation's
accounting records or other sources of the
financial or statistical data
included in the Registration Statement or
Prospectus.
************
I have assumed for purposes of this letter the following: each
document
I have reviewed for purposes of this letter
is accurate and complete, each such
document that is an original is authentic,
each such document that is a copy
conforms to an authentic original and all
signatures on each such document are
genuine (except that I make no such
assumption in respect to the Selling Agent
Agreement); that the Selling Agent
Agreement and every other agreement I have
examined for purposes of this letter
constitutes a valid and binding obligation
of each party to that document and that
each such party has satisfied all legal
requirements that are applicable to such
party to the extent necessary to
entitle such party to enforce such
agreement (except that I make no such
assumption with respect to the
Corporation); and that you have acted in good
faith and without notice of any fact which
has caused you to reach any
conclusion contrary to any of the
conclusions provided in this letter.
In preparing this letter I have relied without independent
verification
upon the following: (i) information
contained in certificates obtained from
governmental authorities; (ii) factual
information represented to be true in the
Selling Agent Agreement and other documents
specifically identified at the
beginning of this letter as having been
read by me; (iii) factual information
provided to me by the other representatives
of the Corporation; and (iv) factual
information I have obtained from such other
sources as I have deemed reasonable.
I have assumed that the information upon
which I have relied is accurate and
does not omit disclosures necessary to
prevent such information from being
misleading. For purposes of numbered
paragraph (i), I have relied exclusively
upon a certificate issued by a governmental
authority in
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<PAGE>
the relevant jurisdiction and such opinion
is not intended to provide any
conclusion or assurance beyond that
conveyed by such certificate. I have not
undertaken any investigation or search of
court records for purposes of this
letter.
I confirm that I do not have knowledge that has caused me to
conclude
that my reliance and assumptions cited in
the two immediately preceding
paragraphs are unwarranted. Whenever this
letter provides advice about (or based
upon) my knowledge of any particular
information or about any information which
has or has not come to my attention such
advice is based entirely on my
conscious awareness at the time this letter
is delivered on the date it bears.
My advice on every legal issue addressed in this letter is
based
exclusively on the General Corporation Law
of the State of Delaware or the
federal law of the United States. I express
no opinion with respect to any state
securities or "blue sky" laws or
regulations, any foreign laws, statutes,
governmental rules or regulations or any
laws, statutes governmental rules or
regulations which in my experience are not
applicable generally to transactions
of the kind covered by the Selling Agent
Agreement. None of the opinions or
other advice contained in this letter
considers or covers (i) any financial
statements or supporting schedules (or any
notes to any such statements or
schedules) or other financial or
statistical information set forth or
incorporated by reference in (or omitted
from) the Registration Statement or the
Prospectus or (ii) any rules and
regulations of the National Association of
Securities Dealers, Inc. relating to the
compensation of underwriters.
My advice on each legal issue addressed in this letter represents
my
opinion as to how that issue would be
resolved were it to be considered by the
highest court of the jurisdiction upon
whose law my opinion on that issue is
based. The manner in which any particular
issue would be treated in any actual
court case would depend in part on facts
and circumstances particular to the
case, and this letter is not intended to
guarantee the outcome of any legal
dispute which may arise in the future.
My opinion in paragraphs (ii), (iii) and (iv) are subject to
the
reservations and qualifications that
enforcement may be limited or affected by
bankruptcy, insolvency, reorganization,
arrangement, moratorium, or other
similar laws relating to or affecting the
rights of creditors generally, and by
general principles of equity, regardless of
whether such enforceability is
considered in a proceeding in equity or at
law, and that rights to indemnity
under the Selling Agent Agreement may be
limited under applicable U.S. Federal
or state law.
This letter speaks as of the time of its delivery on the date it
bears.
I do not assume any obligation to provide
you with any subsequent opinion or
advice by reason of any fact about which I
did not have knowledge at that time,
by reason of any change subsequent to that
time in any law other governmental
requirement or interpretation thereof
covered by any of my opinions or advice,
or for any other reason.
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<PAGE>
This letter may be relied upon by the Agents only for the
purpose
served by the provision in the Selling
Agent Agreement cited in the initial
paragraph of this letter in response to
