Exhibit 99.1
GMAC LLC
Underwriting Agreement
Standard Provisions (Debt Securities)
Dated December 12,
2006
From time to time, GMAC LLC (the
“Company”), a Delaware limited liability company, may
enter into one or more underwriting agreements that provide for the
sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an
“Underwriting Agreement”). The Underwriting Agreement,
including the provisions incorporated therein by reference, is
herein referred to as this Agreement. Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein
as therein defined.
I.
The Company proposes to issue from
time to time debt securities (the “Debt Securities”) to
be issued pursuant to the provisions of the Indenture dated as of
July 1, 1982, as amended, between the Company and The Bank of
New York, as Trustee. The Debt Securities will have varying
designations, maturities, rates and times of payment of interest,
selling prices and redemption terms. Particular terms of any series
of Debt Securities will be contained in an Underwriting Agreement.
The Debt Securities identified in any particular Underwriting
Agreement are herein referred to as Securities.
The Company has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (the file number of which is
contained in the Underwriting Agreement) relating to the Securities
under the Securities Act of 1933, as amended (together with the
rules and regulations of the Commission promulgated thereunder, the
“Securities Act”), and the offering thereof from time
to time in accordance with Rule 415 of the Securities Act. Such
registration statement (and any post-effective amendments thereto,
if applicable), including the information, if any, deemed to be a
part thereof pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time
of its effectiveness, is referred to herein as the
“Registration Statement” and the related prospectus
covering the Securities in the form first used (or made available
upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with the confirmation of sales of the
Securities is referred to herein as the “Basic
Prospectus.” The Basic Prospectus, as supplemented by the
prospectus supplement specifically relating to the Securities in
the form first used (or made available upon request of purchasers
pursuant to Rule 173 under the Securities Act) in connection with
the confirmation of sales of the Securities is hereinafter referred
to as the “Prospectus” and the term “Preliminary
Prospectus” means any preliminary form of the Prospectus. If
the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the Securities Act (the “Rule
462(b) Registration Statement”), then all references to
“Registration Statement” shall also be deemed to
include the Rule 462(b) Registration Statement. Any references to
the “Registration Statement,” the “Preliminary
Prospectus” and the “Prospectus” shall also be
deemed to include all documents incorporated therein by
reference
pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended
(together with the rules and regulations of the Commission
promulgated thereunder, the “Exchange Act”) on or
before the effective date of the Registration Statement or the date
of such Preliminary Prospectus or the Prospectus, as the case may
be, and references to “amend,” “amendment”
or “supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the filing of any document under the
Exchange Act after the effective date of the Registration Statement
or the date of such Preliminary Prospectus or the Prospectus, as
the case may be, that are deemed to be incorporated by reference
therein. The term “Permitted Free Writing Prospectus”
as used herein means the documents identified as such in the
applicable Underwriting Agreement.
II.
The Company is advised by the
Manager that the Underwriters propose to make a public offering of
their respective portions of the Securities as soon after this
Agreement is entered into as in the Manager’s judgment is
advisable. The terms of the public offering of the Securities are
set forth in the Prospectus.
III.
Payment for the Securities shall be
made by wire transfer of immediately available funds, to the
account specified by the Company to the Manager, on the Closing
Date at the time and place set forth in the Underwriting Agreement,
upon delivery to the Manager for the respective accounts of the
several Underwriters of the Securities registered in such names and
in such denominations as the Manager shall request in writing not
less than two full business days prior to the date of delivery. The
time and date of such payment and delivery with respect to the
Securities are herein referred to as the Closing Date.
IV.
The several obligations of the
Underwriters hereunder are subject to the following
conditions:
(a) No stop order suspending the
effectiveness of the Registration Statement shall be in effect, no
proceedings for such purpose shall be pending before or threatened
by the Commission, there shall have been no material adverse change
(not in the ordinary course of business) in the financial condition
of the Company and its subsidiaries, taken as a whole, from that
set forth in the Registration Statement, the Disclosure Package, if
any, and the Prospectus and the representations and warranties of
the Company in this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same
effect as if made on the Closing Date; and the Manager shall have
received on the Closing Date a certificate, dated the Closing Date
and signed by an executive officer, including without limitation
the Group Vice President—Global Borrowings of the Company
(acting on behalf of the Company and without personal liability),
to the foregoing effect. The officer making such certificate may
rely upon the best of his knowledge as to proceedings
threatened.
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(b) The Manager shall have received
on the Closing Date an opinion of the Assistant General Counsel of,
or counsel to, the Company, dated the Closing Date, to the effect
set forth in Exhibit A.
(c) The Manager shall have received
on the Closing Date an opinion of counsel for the Underwriters,
dated the Closing Date, to the effect set forth in Exhibit
B.
(d) The Manager shall have received
on the Closing Date a letter dated the Closing Date in form and
substance satisfactory to the Manager, from Deloitte &
Touche, independent accountants, containing statements and
information of the type ordinarily included in the
accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Registration Statement, the Disclosure Package, if any, and the
Prospectus.
V.
In further consideration of the
agreements of the Underwriters contained in this Agreement, the
Company covenants as follows:
(a) To furnish the Manager, upon
written request, without charge, a copy of the Registration
Statement including exhibits and materials, if any, incorporated by
reference therein and, during the period beginning with the Initial
Sale Time and ending on the later of the Closing Date or such date
as the Prospectus is no longer required by law to be delivered in
connection with the initial offering or sale of the Securities
(including in circumstances where such requirement may be satisfied
pursuant to Rule 172) (the “Prospectus Delivery
Period”), as many copies of any Permitted Free Writing
Prospectus and the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto as the
Manager may reasonably request.
(b) During the Prospectus Delivery
Period, before amending or supplementing the Registration Statement
or the Prospectus with respect to the Securities, to furnish the
Manager a copy of each such proposed amendment or
supplement.
(c) To furnish to you upon written
request 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
during the Prospectus Delivery Period, either (i) any event
shall have occurred as a result of which the Prospectus or the
Disclosure Package as then amended or supplemented would, as
determined by the Company, 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, and in order that
timely information is provided pursuant to Rule 159 of the
Securities Act, or (ii) for any other reason, as determined by
the Company, it shall be necessary to amend or supplement the
Registration Statement or the 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 the Underwriters to suspend offers and sales of the
Securities and if notified by the Company, you shall forthwith
suspend such solicitation and cease using the Prospectus as
then
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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 use its reasonable best
efforts to cooperate with you and your counsel in connection with
the qualification or registration of the Securities for offer and
sale under the securities or “Blue Sky” laws of such
jurisdictions as you may reasonably request and will maintain such
qualification in effect for as long as may be necessary to complete
the sale of the Securities pursuant to this Agreement; provided,
however, 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,
or to take any other action that would subject it to general
service of process or to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so
subject.
(e) The Company will make generally
available to its security holders and to the Underwriters 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(c) under the
Securities Act) of the Registration Statement with respect to each
sale of Securities. 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 Manager, to cause such Securities as the
Company and the Manager agree to be accepted for listing on any
stock exchange (each, a “Stock Exchange”), in each case
as the Company and the Manager shall deem to be appropriate. In
connection with any such agreement to qualify Securities 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.
(g) During the Prospectus Delivery
Period, to notify you promptly (i) of the filing of any
amendment or supplement to the Registration Statement or
Prospectus, and (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose or
pursuant to Section 8A of the Securities Act.
(h) The Company, during the
Prospectus Delivery Period, will file timely (giving effect to any
grace periods or extensions available under applicable Commission
regulations) all documents required to be filed with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act.
(i) The Company will (i) in
respect of the Securities, promptly within the time periods
specified therein, effect the filings required of it pursuant to
Rule 424 and/or Rule 433 under the Securities Act, and
(ii) take such steps as it deems necessary to
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ascertain promptly whether the Permitted Free
Writing Prospectus transmitted for filing under Rule 433 of the
Securities Act were received for filing by the Commission and, in
the event that any was not, it will promptly file the relevant
Permitted Free Writing Prospectus.
VI.
The Company represents and warrants
to each Underwriter as of the date of the Underwriting Agreement
and as of the Closing Date that (i) each document, if any,
filed or to be filed pursuant to the Exchange Act and incorporated
by reference in the Prospectus or any Permitted Free Writing
Prospectus complied or will comply when so filed in all material
respects with such Act and the rules and regulations thereunder,
(ii) as of the applicable effective date of the Registration
Statement and any amendment thereto (including the documents
incorporated by reference therein), the Registration Statement did
not and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading,
(iii) as of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date, the Prospectus 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, (iv) at the time made available by the
Company to the Underwriters for delivery with respect to the
Securities, the Disclosure Package did not or will not contain an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading,
(v) no Issuer Free Writing Prospectus (as defined in Rule 433
under the Securities Act) includes any information that conflicts
in any material respect with the information contained in the
Registration Statement including any document incorporated by
reference therein, and the Prospectus; notwithstanding the
foregoing, the representations and warranties herein shall not
apply to statements in or omissions from the Prospectus or an
Issuer Free Writing Prospectus (a) made in reliance upon and
in conformity with information relating to any Underwriter
furnished to the Company in writing by any Underwriter expressly
for use in such Prospectus or an Issuer Free Writing Prospectus, or
(b) any information contained in any “free writing
prospectus” (as defined under Rule 405 of the Securities Act)
(including any Issuer Free Writing Prospectus) prepared by or on
behalf of any Underwriter(s), except to the extent such information
has been accurately extracted from the Prospectus or any Issuer
Free Writing Prospectus prepared by or on behalf of the Company, or
otherwise provided in writing by the Company and included in such
free writing prospectus prepared by or on behalf of any
Underwriter(s); (vi) as of the applicable effective date of
the Registration Statement and any amendment thereto, the
Registration Statement complied and as of the Closing Date will
comply in all material respects with the Securities Act,
(vii) (a) no litigation or proceeding shall be pending,
or, to the knowledge of the Company, threatened, to restrain or
enjoin the issuance or delivery of the Securities, or which in any
way questions or affects the validity of the Securities and
(b) the Company has filed the Registration Statement with the
Commission and such Registration Statement is effective under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before, or, to the knowledge of the Company,
threatened by, the Commission and there has 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,
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each of which conditions shall be met on the
Closing Date (exclusive of any amendment or supplement thereto
subsequent to the date of the Underwriting Agreement;
(viii) 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 Securities in accordance
with the Indenture or the sale of the Securities in accordance with
this Agreement other than (a) the registration of the
Securities under the Securities Act, (b) qualification of the
Indenture under the Trust Indenture Act and (c) compliance
with the securities or “Blue Sky” laws of various
jurisdictions; (ix) the execution and delivery of the
Indenture, the issuance of the Securities in accordance with the
Indenture and the sale of the Securities 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 Certification of Formation or the Limited
Liability Company Agreement of the Company, or any indenture,
mortgage or other agreement or instrument by which the Company is
bound; (x) the aggregate principal amount of the
Company’s Securities outstanding at any one time will not
exceed any limitation thereon which may then be in effect by action
of the Board of Directors (or Executive Committee) of the Company;
(xi) no event exists which would constitute an event of
default under the Indenture; and (xii) the Company has not
used any free writing prospectus other than a Permitted Free
Writing Prospectus or used a Permitted Free Writing Prospectus
except in compliance with Rule 433 under the Securities Act and
otherwise in compliance with the Securities Act. The
representations, warranties and covenants of the Company shall
survive the execution and delivery of this Agreement and the
issuance and sale of the Securities. The Company acknowledges that
the Underwriters and, for purposes of the opinions to be delivered
to the Underwriters pursuant to Article IV hereof, counsel for the
Company and counsel for the Underwriters, will rely upon the
accuracy and truth of the representations contained in this
Agreement and hereby consent to such reliance.
Except as otherwise agreed by the
Company and specified in an Underwriting Agreement with respect to
the Securities, each of the Underwriters, severally and not
jointly, represents, warrants and covenants to the Company that it
has not made and will not make any offer relating to the Securities
that would constitute a free writing prospectus, as defined in Rule
405 under the Securities Act, other than a Permitted Free Writing
Prospectus or a free writing prospectus which is not required to be
filed by the Company pursuant to Rule 433 under the Securities Act;
provided, that, if so specified in the Underwriting Agreement or
the Company shall otherwise so notify the Underwriters in writing,
the Underwriter will make no offer relating to the Securities that
will constitute a free writing prospectus as defined in Rule 405
under the Securities Act, other than a Permitted Free Writing
Prospectus, without the prior written consent of the Company. Any
free writing prospectus or Permitted Free Writing Prospectus
prepared by or on behalf of such Underwriter will only be used by
such Underwriter if it complies in all material respects with the
requirement of the Securities Act.
Each of the Underwriters, severally
and not jointly, represents, warrants and covenants to the Company
that, it is aware that other than registering the Securities under
the Securities Act, and complying with any applicable state
securities, or “Blue Sky”, laws, no action has been or
will be taken by the Company that would permit the offer or sale of
the Securities or possession or distribution of the Prospectus or
any other offering material relating to the Securities in any
jurisdiction where action for that purpose is required.
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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 Securities or have in your possession or distribute the
Prospectus or any other offering material relating to the
Securities and you will obtain any consent, approval or permission
required by you for the purchase, offer or sale by you of
Securities 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
Underwriter shall have any responsibility for determining what
compliance is necessary by you or for your obtaining such consents,
approvals or permissions. Each Underwriter further agrees that it
will take no action that will impose any obligations on the Company
or the other Underwriters. Subject to as provided above, each
Underwriter shall, unless prohibited by applicable law, not enter
into a contract of sale with any prospective purchaser of the
Securities until the Disclosure Package has been conveyed to the
prospective purchaser. Subject to as provided above, each
Underwriter shall, unless prohibited by applicable law, furnish to
each person to whom it offers, sells or deliver Securities a copy
of the Prospectus (as then amended or supplemented) or (unless
delivery of the Prospectus (or in lieu thereof the notice referred
to in Rule 173(a) under the Securities Act) is required by
applicable law) inform each such person that a copy thereof (as
then amended or supplemented) will be made available upon request.
The Underwriters 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
Securities.
VII.
The Company agrees to indemnify and
hold harmless each Underwriter, each person, if any, who controls
(within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) such Underwriter and each
of such Underwriter’s 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, the Prospectus, any Permitted Free Writing Prospectus or
the Disclosure Package, 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 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 an Underwriter to
the Company expressly for use in the Registration Statement, the
Prospectus, any Permitted Free Writing Prospectus or the Disclosure
Package or any amendment or supplement thereto; provided, however,
that the foregoing indemnity agreement with respect to the
Disclosure Package shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Securities, or any person
controlling such Underwriter where (i) prior to the Initial
Sale Time the Company shall have notified such Underwriter that the
Disclosure Package (as it existed prior to the Initial Sale Time)
contains an untrue statement of material fact or omits to state
therein a material fact required to be stated therein in order to
make the statements therein not misleading, (ii) such untrue
statement or omission of a material fact was corrected in the
Disclosure Package or, where permitted by law, an issuer free
writing prospectus (as defined in Rule 433 under the
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Act) and such corrected Disclosure Package or
issuer free writing prospectus was provided to such Underwriter a
reasonable amount of time in advance of the Initial Sale Time such
that the corrected Disclosure Package or issuer free writing
prospectus could have been provided to such person prior to the
Initial Sale Time, (iii) such corrected Disclosure Package or
issuer free writing prospectus (excluding any document then
incorporated or deemed incorporated therein by reference) was not
conveyed to such person at or prior to the Initial Sale Time, and
(iv) such loss, claim, damage or liability would not have
occurred had the corrected Disclosure Package or issuer free
writing prospectus (excluding any document then incorporated or
deemed incorporated therein by reference) been conveyed to such
person as provided for in clause (iii) above.
Each Underwriter 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, any Permitted Free Writing
Prospectus, the Disclosure Package, the Prospectus, any free
writing prospectus prepared by or on behalf of the Underwriter, 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 as to the
Registration Statement, any Permitted Free Writing Prospectus, the
Disclosure Package, the Prospectus, or any amendment or supplement
thereto, 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 “Underwriting” or
any amendment or supplement thereto, only with respect to the names
of the underwriters appearing on the front and back cover page of
the Preliminary Prospectus or the Prospectus, if any, the names of
the Underwriters, amount of any selling concession and reallowance
and any discussion of any stabilization activities, over allotment
activities, penalty bids or similar types of activities appearing
under the heading “Underwriting” in the Preliminary
Prospectus or the Prospectus, or was otherwise made in reliance on
and in conformity with written information furnished to the Company
by you expressly for use in the Registration Statement, any
Permitted Free Writing Prospectus, the Disclosure Package, the
Prospect
