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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 c
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