AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 18, 1998
REGISTRATION NO. 333-XXXXX
======================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
GENERAL MOTORS ACCEPTANCE CORPORATION
A Delaware Corporation-- I.R.S. Employer No. 38-0572512
General Motors Acceptance Corporation
3044 West Grand Boulevard
Detroit, Michigan 48202
(313-556-5000)
Agent For Service
Jerome B. Van Orman, Vice President
General Motors Acceptance Corporation
3044 West Grand Boulevard, Detroit, Michigan 48202 (313-556-1508)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable on or after the effective date of this Registration
Statement.
------------------
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX.
/ /
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE
OFFERED ON A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE
SECURITIES ACT OF 1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH
DIVIDEND OR INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
<PAGE>
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================
TITLE OF PROPOSED PROPOSED
EACH CLASS MAXIMUM MAXIMUM
OF SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED (1)* PER UNIT PRICE (2) FEE
- -----------------------------------------------------------------------------------------------------------------
SmartNotes(sm), Due from
Nine Months to Thirty Years
<S> <C> <C> <C> <C>
from Date of Issue $965,211,000 100% $965,211,000 $292,488
=================================================================================================================
</TABLE>
*Or, if any Debt Securities are issued at an original issue discount, such
greater principal amount as shall result in an aggregate initial offering price
of $1,000,000,000.
(1) The amount of Debt Securities being registered, together with
$34,789,000 Debt Securities registered on September 19, 1996
(Registration No. 333-12023) and remaining unissued as of the date
hereof, represents the maximum aggregate principal amount of Debt
Securities which, on or after March 18, 1998, are expected to be
offered for sale.
(2) Estimated solely for the purpose of determining the amount of the
registration fee.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this Registration Statement also relates to Debt Securities of
the Registrant registered and remaining unissued under Registration Statement
No. 333-12023.
- ---------------
(sm)Service Mark of General Motors Acceptance Corporation
<PAGE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
Information contained herein is subject to completion or amendment.
A Registration Statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the Registration Statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these
securities in any state in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of any
such state.
- --------------------------------------------------------------------------------
<PAGE>
PROSPECTUS
U.S.$1,000,000,000
GENERAL MOTORS ACCEPTANCE CORPORATION
SMARTNOTES(SM)
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
General Motors Acceptance Corporation (the "Company") may offer from
time to time its SmartNotes(sm) Due from Nine Months to Thirty Years from Date
of Issue (the "Notes"). The Notes offered by this Prospectus will be limited to
up to $1,000,000,000 aggregate initial offering price. The Notes will be offered
at varying maturities due from nine months to thirty years from the date of
issue (the "Issue Date"), as selected by the purchaser and agreed to by the
Company. Unless otherwise described herein, the interest rate, issue price,
stated maturity, interest payment dates, whether the Notes are subject to
redemption at the option of the Company or replacement at the option of the
holder prior to the maturity date thereof (as further defined herein, the
"Maturity Date") and certain other terms (including, if applicable, a Survivor's
Option (as such term is defined in "Repayment Upon Death")) with respect to each
Note will be established at the time of issuance and set forth in a pricing
supplement to this Prospectus (a "Pricing Supplement"). Unless otherwise
specified in the applicable Pricing Supplement, Notes will be issued only in
denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000. See "Description of Notes." The Notes are unsecured and
unsubordinated obligations of the Company and will rate equally and ratably with
all other unsecured and unsubordinated indebtedness of the Company (other than
obligations preferred by mandatory provisions of law).
The interest rate on each Note will be a fixed rate established by the
Company at the Issue Date of such Note, which may be zero in the case of certain
Notes issued at a price representing a discount from the principal amount
payable upon the Maturity Date. See "Description of Notes."
The Notes may be issued in whole or in part in the form of one or more
global Notes to be deposited with or on behalf of The Depository Trust Company
("DTC") or other depositary (DTC or such other depositary as is specified in the
applicable Pricing Supplement is herein referred to as the "Depositary") and
registered in the name of the Depositary's nominee. Beneficial interests in the
Notes will be shown on, and transfers thereof will be effected only through,
records maintained by the Depositary and, with respect to the beneficial owners'
interests, by the Depositary's participants, including the U.S. Depositaries for
Cedel Bank and Euroclear. Notes will not be issuable as certificated Notes
except under the limited circumstances described herein. See "Description of
Notes-Book Entry, Delivery and Form."
The Interest Payment Dates for a Note that provides for monthly
interest payments shall be the fifteenth day of each calendar month (or the next
Business Day), commencing in the calendar month that next succeeds the month in
which the Note is issued. In the case of a Note that provides for quarterly
<PAGE>
interest payments, the Interest Payment Dates shall be the fifteenth day of
every third month (or the next Business Day), commencing in the third succeeding
calendar month following the month in which the Note is issued. In the case of a
Note that provides for semi-annual interest payments, the Interest Payment Dates
shall be the fifteenth day of every sixth month (or the next Business Day),
commencing in the sixth succeeding calendar month following the month in which
the Note is issued. In the case of a Note that provides for annual interest
payments, the Interest Payment Date shall be the fifteenth day of every twelfth
month (or the next Business Day), commencing in the twelfth succeeding calendar
month following the month in which the Note is issued. The Regular Record Date
with respect to any Interest Payment Date shall be the first day of the calendar
month in which such Interest Payment Date occurs, except that the Regular Record
Date with respect to the final Interest Payment Date shall be the final Interest
Payment Date.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY PRICING SUPPLEMENT HERETO. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------
<TABLE>
================================================================================================
<CAPTION>
PRICE TO AGENTS' DISCOUNTS PROCEEDS TO
PUBLIC (1)(2) AND CONCESSIONS (2) COMPANY (2)(3)
<S> <C> <C> <C>
Per Note 100.00% .20% - 2.50% 97.50% - 99.80%
Total $1,000,000,000 $2,000,000 - $25,000,000 $975,000,000-$998,000,000
================================================================================================
</TABLE>
(1) Unless otherwise specified in the applicable Pricing Supplement, Notes
will be issued at 100% of their principal amount.
(2) The concession payable (the "Concession") for each Note sold through
ABN AMRO Incorporated (the "Purchasing Agent") will be computed based
upon the non-discounted price paid by the public (the "Price to
Public") for such Note and will depend on such Note's Maturity Date.
The Company has agreed to indemnify each of the agents listed below
(the "Agents") against certain liabilities, including liabilities
under the Securities Act of 1933, as amended. See "Plan of
Distribution."
(3) Before deducting expenses payable by the Company estimated at $500,000.
<PAGE>
The Notes are being offered on a continuous basis for sale by the
Company through one or more of the Agents listed below and each of the Agents
has agreed to use its reasonable best efforts to solicit offers to purchase the
Notes. Unless otherwise specified in an applicable Pricing Supplement, the Notes
will not be listed on any securities exchange, and there can be no assurance
that the Notes offered hereby will be sold or that there will be a secondary
market for the Notes. The Agents have advised the Company that they may from
time to time purchase and sell Notes in the secondary market, but the Agents are
not obligated to do so. No termination date for the offering of the Notes has
been established. The Company reserves the right to withdraw, cancel or modify
the offer made hereby without notice. The Company or the Agent that solicits any
offer may reject such offer in whole or in part. See "Plan of Distribution."
------------------
ABN AMRO INCORPORATED
A.G. EDWARDS & SONS, INC.
EDWARD JONES & CO., L.P.
FIDELITY CAPITAL MARKETS
a division of National Financial Services Corporation
PRUDENTIAL SECURITIES INCORPORATED
SALOMON SMITH BARNEY
March __, 1998
<PAGE>
No dealer, salesman or any other person has been authorized to give any
information or to make any representations not contained or incorporated by
reference in this Prospectus and any accompanying Pricing Supplement in
connection with the offer made by this Prospectus and any accompanying Pricing
Supplement and, if given or made, such information or representations must not
be relied upon as having been authorized by the Company or by any Agent. This
Prospectus and any accompanying Pricing Supplement shall not constitute any
offer of any securities other than the Notes. Neither the delivery of this
Prospectus and any accompanying Pricing Supplement nor any sale made thereunder
shall, under any circumstances, create any implication that there has been no
change in the affairs of the Company or its subsidiaries since the date hereof
or that the information contained herein is correct as of any time subsequent to
its date.
No action has been taken by the Company or any of the Agents which
would permit a public offering of the Notes or distribution of this Prospectus
or any accompanying Pricing Supplement in any jurisdiction, other than the
United States. Accordingly, the Notes may not be offered or sold, directly or
indirectly, and neither this Prospectus or any accompanying Pricing Supplement
nor any advertisement or other offering material may be distributed or
published, in any jurisdiction, except in circumstances that will result in
compliance with any applicable laws and regulations. Persons into whose
possession this Prospectus or any accompanying Pricing Supplement or any Notes
come must inform themselves about, and observe, any such restrictions. Neither
the Company nor any of the Agents represent that this Prospectus or any
accompanying Pricing Supplement may be lawfully distributed, or that the Notes
may be lawfully offered, in compliance with any applicable registration or other
requirements in any such jurisdiction, or pursuant to an exemption therefrom, or
assumes any responsibility for facilitating any such distribution or offering.
In particular, there are further restrictions on the distribution of this
Prospectus or any accompanying Pricing Supplement and the offer or sale of the
Notes in the United Kingdom. See "Plan of Distribution."
------------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE
NOTES, INCLUDING OVER-ALLOTMENT AND STABILIZATION. FOR A DESCRIPTION OF THESE
ACTIVITIES, SEE "PLAN OF DISTRIBUTION."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Such reports and other information filed
by the Company with the Commission can be inspected, and copies may be obtained
at prescribed rates, at the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, as well as at the following Regional
Offices of the Commission at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511 and Seven World Trade Center, Suite 1300, New
<PAGE>
York, New York 10048. Such material may also be accessed electronically by means
of the Commission's home page on the Internet at http://www.sec.gov. Reports and
other information concerning the Company can also be inspected at the offices of
the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on
Form S-3 (including all amendments thereto, the "Registration Statement") under
the Securities Act of 1933, as amended, with respect to the Notes. As permitted
by the rules and regulations of the Commission, this Prospectus does not contain
all the information set forth in the Registration Statement and the exhibits
thereto and to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December
31, 1997 filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act is incorporated by reference in this Prospectus.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the Notes shall
be deemed to be incorporated by reference in this Prospectus and to be a part
thereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE UPON WRITTEN OR ORAL REQUEST, TO EACH
PERSON TO WHOM THIS PROSPECTUS IS DELIVERED, A COPY OF ANY OR ALL OF THE
DOCUMENTS DESCRIBED ABOVE WHICH HAVE BEEN INCORPORATED BY REFERENCE IN THIS
PROSPECTUS, OTHER THAN EXHIBITS TO SUCH DOCUMENTS. SUCH REQUEST SHOULD BE
DIRECTED TO:
G. E. GROSS, COMPTROLLER
GENERAL MOTORS ACCEPTANCE CORPORATION
3044 WEST GRAND BOULEVARD
MAIL CODE 482-1X1-103
DETROIT, MICHIGAN 48202
(313) 556-1240
<PAGE>
TABLE OF CONTENTS
PAGE
----
Summary .............................................................
Description of General Motors Acceptance Corporation ................
Principal Executive Offices .........................................
Ratio of Earnings to Fixed Charges ..................................
Use of Proceeds .....................................................
Certain Risk Factors Existing When Notes are Redeemable at the
Option of the Company .........................................
Description of Notes ................................................
United States Federal Taxation ......................................
Certain Covenants as to Liens .......................................
Modification of the Indenture .......................................
Events of Default ...................................................
Concerning the Trustee ..............................................
Concerning the Paying Agents ........................................
Plan of Distribution ................................................
Legal Opinions ......................................................
Experts..............................................................
<PAGE>
SUMMARY
THE FOLLOWING DOES NOT PURPORT TO BE COMPLETE AND IS QUALIFIED IN ITS
ENTIRETY BY, AND SHOULD BE READ IN CONJUNCTION WITH, THE MORE DETAILED
INFORMATION APPEARING ELSEWHERE IN THIS PROSPECTUS AND ANY SUPPLEMENT OR
AMENDMENT HERETO, INCLUDING, IN RELATION TO ANY PARTICULAR ISSUE OF NOTES, THE
APPLICABLE PRICING SUPPLEMENT. CAPITALIZED TERMS USED IN THIS SUMMARY HAVE THE
MEANINGS GIVEN TO SUCH TERMS ELSEWHERE IN THIS PROSPECTUS.
Issuer............................. General Motors Acceptance Corporation.
Purchasing......................... Agent ABN AMRO Incorporated. Following
the solicitation of orders, A.G.
Edwards & Sons, Inc., Edward Jones &
Co., L.P., Fidelity Capital Markets,
a division of National Financial
Services Corporation, Prudential
Securities Incorporated and Salomon
Brothers Inc, as agents, may purchase
Notes from the Company through the
Purchasing Agent as principal for its
own account. The Company may appoint
other U.S. or foreign agents from time
to time.
Title............................. SmartNotes.(sm)
Trustee........................... The Chase Manhattan Bank under an
Indenture dated as of September 24,
1996, as amended.
Amount............................ Up to $1,000,000,000 aggregate initial
offering price.
Status............................ The Notes are unsecured and
unsubordinated obligations of the
Company and will rate equally and
ratably with all other unsecured and
unsubordinated indebtedness of the
Company (other than obligations
preferred by mandatory provisions of
law).
Maturities........................ Due from nine months to thirty years
from the date of issue, as specified in
the applicable Pricing Supplement.
Selling Group Members............. Broker-dealers and/or securities firms
that have executed dealer agreements
with the Purchasing Agent (ABN AMRO
Incorporated) and have agreed to market
and sell SmartNotes in accordance with
<PAGE>
the terms of these agreements along
with all other applicable laws and
regulations. You may call 1-800-
501-2958 for a list of Selling Group
Members or access the Internet at
www.smartnotes.com.
Interest.......................... Each Note will bear interest from the
Issue Date at a fixed rate, which may
be zero in the case of a Note issued at
an Issue Price representing a
substantial discount from the
principal amount payable upon the
Maturity Date (a "Zero-Coupon Note").
Unless otherwise specified in the
applicable Pricing Supplement, interest
on each Note (other than a Zero-Coupon
Note) will be payable either monthly,
quarterly, semi-annually or annually
on each Interest Payment Date and on
the Maturity Date. Unless otherwise
specified in the applicable Pricing
Supplement, any interest on the Notes
will be computed on the basis of a 360-
day year of twelve 30-day months.
Principal......................... Unless otherwise provided in the
applicable Pricing Supplement, the
principal amount of the Notes will be
payable on the Maturity Date of such
Notes at the Corporate Trust Office of
The Chase Manhattan Bank, Corporate
Trust Services, 450 West 33rd Street,
15th Floor, New York, New York 10001,
or at such other place as the Company
may designate.
Redemption and Repayment ........ Unless otherwise provided in the
applicable Pricing Supplement, the
Notes will not be redeemable prior to
the Maturity Date at the option of the
Company or repayable prior to the
Maturity Date at the option of the
holder. Unless otherwise provided in
the applicable Pricing Supplement, the
Notes will not be subject to any
sinking fund. The Pricing Supplement
relating to any Note will indicate
whether the holder of such Note will
have the right to require the Company
to repay a Note prior to its Maturity
Date upon the death of the owner of
such Note.
<PAGE>
Form of Notes and Clearance ...... The Notes may be offered in the United
States only, outside the United States
only or in and outside the United
States simultaneously as part of a
global offering. Depending on where
the relevant Notes are offered, the
Notes will clear through one or more of
The Depository Trust Company ("DTC"),
Morgan Guaranty Trust Company of New
York, Brussels office, as operator of
the Euroclear System ("Euroclear")
and Cedel Bank, societe anonyme ("Cedel
Bank") or any successors thereto.
Global Notes will be exchangeable for
definitive Notes only in limited
circumstances. See "Description of
Notes - Global Clearance and
Settlement."
Denomination ..................... Unless otherwise specified in the
applicable Pricing Supplement, the
authorized denominations of the Notes
will be $1,000 and any amount in
excess thereof that is an integral
multiple of $1,000.
Tax Status........................ The Notes and payments thereon
generally are subject to taxation by
the United States and generally are not
exempt from taxation by other U.S.
or non-U.S. taxing jurisdictions.
Non-U.S. Persons will be subject to
U.S. Federal income tax and withholding
tax unless they provide certain
certifications or statements.
<PAGE>
DESCRIPTION OF GENERAL MOTORS ACCEPTANCE CORPORATION
General Motors Acceptance Corporation, a wholly-owned subsidiary of
General Motors Corporation, was incorporated in 1997 under the Delaware General
Corporation Law. On January 1, 1998, the Company merged with its predecessor
which was originally incorporated in 1919 under the New York Banking Law
relating to investment companies, and thereupon assumed all of its predecessor's
assets, liabilities and obligations.
Operating directly and through subsidiaries and associated companies in
which its has equity investments, the Company offers a wide variety of
automotive financial services to and through franchised General Motors dealers
in many countries throughout the world. Financial services also are offered to
other automobile dealerships and to the customers of those dealerships. Other
financial services offered by the Company or its subsidiaries include insurance
and mortgage banking.
The principal business of the Company and its subsidiaries is to
finance the acquisition by franchised General Motors dealers for resale of
various new automotive and nonautomotive products manufactured by General Motors
Corporation or certain of its subsidiaries and associates, and to acquire from
such dealers, either directly or indirectly, installment obligations covering
retail sales and leases of new General Motors products as well as used units of
any make. In addition, new products of other manufacturers are financed. The
Company also leases motor vehicles and certain types of capital equipment to
others.
The automotive financing industry is highly competitive. The Company's
principal competitors are affiliated finance subsidiaries of other major
manufacturers as well as a large number of banks, commercial finance companies,
savings and loan associations and credit unions. The business of the Company is
influenced by its ability to offer competitive financing rates which in turn is
directly affected by its access to capital markets.
PRINCIPAL EXECUTIVE OFFICES
General Motors Acceptance Corporation has its principal executive
offices at 3044 West Grand Boulevard, Detroit, Michigan 48202 (Tel. No.
313-556-5000).
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
YEARS ENDED DECEMBER 31,
------------------------
1997 1996 1995 1994 1993
------------------------
1.42 1.41 1.36 1.33 1.33
The ratio of earnings to fixed charges has been computed by dividing
earnings before income taxes and fixed charges by the fixed charges. This ratio
includes the earnings and fixed charges of the Company and its consolidated
subsidiaries. Fixed charges consist of interest and discount and the portion of
rentals for real and personal properties in an amount deemed to be
representative of the interest factor.
USE OF PROCEEDS
The net proceeds from the sale of the Notes will be added to the
general funds of the Company and will be available for the purchase of
receivables, the making of loans or the repayment of debt. Such proceeds
initially may be used to reduce short-term borrowings or invested in short-term
securities.
CERTAIN RISK FACTORS EXISTING WHEN NOTES
ARE REDEEMABLE AT THE OPTION OF THE COMPANY
If the accompanying Pricing Supplement specifies that the Notes are
redeemable at the option of the Company, the Company is likely to redeem the
Notes on or after the redemption date(s) specified if prevailing interest rates
on the redemption date(s) are lower than the rate borne by the Notes. Upon any
such redemption, registered holders (and beneficial owners) of the Notes
generally will not be able to reinvest the redemption proceeds in a comparable
security at an effective interest rate as high as the interest rate on the
Notes. Accordingly, if the Company has the right to redeem the Notes,
prospective investors should consider the related reinvestment risk in light of
other investments available at the time of an investment in the Notes.
If the accompanying Pricing Supplement provides that the Company has
the right to redeem the Notes, the ability of the Company to so redeem the Notes
at its option is likely to affect the market value of the Notes. In particular,
as the redemption date(s) approaches, the market value of the Notes generally
will not rise substantially above the redemption price because of the optional
redemption feature.
This Prospectus does not describe all of the risks of an investment in
the Notes. The Company and the Agents disclaim any responsibility to advise
prospective investors of such risks as they exist at the date of this Prospectus
or any accompanying Pricing Supplement or as they change from time to time.
Prospective investors should consult their own financial and legal advisors as
to the risks entailed by an investment in the Notes and the suitability of
investing in the Notes in light of their particular circumstances.
<PAGE>
DESCRIPTION OF NOTES
The terms and conditions set forth herein will apply to each Note
unless otherwise specified herein or in the applicable Pricing Supplement and in
such Note.
GENERAL
The Notes will be limited to $1,000,000,000 aggregate initial offering
price, on terms to be determined at the time of sale. The Notes will be issued
under an Indenture dated as of September 24, 1996, as amended by a First
Supplemental Indenture dated as of January 1, 1998 (together, the "Indenture")
between the Company and The Chase Manhattan Bank, as Trustee. The Indenture does
not limit the amount of additional unsecured indebtedness ranking equally and
ratably with the Notes that the Company may incur and the Company may, from time
to time, without the consent of the holders of the Notes, provide for the
issuance of Notes under the Indenture in addition to the $1,000,000,000
aggregate initial offering price of the Notes offered hereby. The statements
herein concerning the Notes and the Indenture do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, all the
provisions of the Indenture, including the definitions therein of certain terms.
Whenever particular provisions of the Indenture or defined terms contained in
the Indenture are referred to, such provisions and defined terms are
incorporated herein by reference as a part of the statements made, and the
statements are qualified in their entirety by such reference.
The Notes will constitute unsecured and unsubordinated indebtedness of
the Company and will rank equally and ratably with all other unsecured and
unsubordinated indebtedness of the Company (other than obligations preferred by
mandatory provisions of law).
Notes will be offered on a continuing basis and will mature on any day
nine months to thirty years from the Issue Date, as selected by the purchaser
and agreed to by the Company. Each Note will bear interest from the Issue Date
(as defined below) at a fixed rate, which may be zero in the case of a Note
issued at an Issue Price (as defined below) representing a substantial discount
from the principal amount payable upon the Maturity Date (a "Zero-Coupon Note").
Each Note will be issued in fully registered form without coupons and
will be represented by a global Note registered in the name of a nominee of the
Depositary. Except as set forth herein, Notes will be issuable only in global
form. See "Description of Notes-Book-Entry; Delivery and Form" below. All Notes
issued on the same day and having the same terms (including, but not limited to,
the same designation, the same currency, Interest Payment Dates (as defined
below), rate of interest, Maturity Date and redemption or repayment provisions)
may be represented by a single Note. A beneficial interest in a Note will be
shown on, and transfers thereof will be effected only through, records
maintained by the Depositary or its participants, including the U.S.
Depositaries for Cedel Bank and Euroclear. Payments of principal of, premium, if
any, and interest, if any, on, Notes represented by a Note will be made by the
Company or its paying agent to the Depositary or its nominee. Unless otherwise
specified in the applicable Pricing Supplement, DTC will be the Depositary. See
"Description of Notes-Book Entry; Delivery and Form."
<PAGE>
Unless otherwise specified in the applicable Pricing Supplement, the
authorized denominations of the Notes will be $1,000 and any amount in excess
thereof that is an integral multiple of $1,000.
The principal amount of the Notes will be payable at Maturity at the
Corporate Trust Office of The Chase Manhattan Bank, Corporate Trust Services,
450 West 33rd Street, 15th Floor, New York, New York 10001, or at such other
place as the Company may designate.
Unless otherwise specified in the applicable Pricing Supplement, the
Notes may not be redeemed by the Company, or repaid at the option of the holder,
or both, prior to their Maturity Date. Unless otherwise specified in the
applicable Pricing Supplement, the Notes will not be subject to any sinking
fund. See "Description of Notes-Redemption and Repayment."
Unless otherwise specified in the applicable Pricing Supplement, the
amount of any Original Issue Discount Note (as such term is defined in
"Description of Notes - Original Issue Discount Notes") payable in the event of
redemption by the Company, repayment at the option of the holder or acceleration
of Maturity (as such term is defined in "Glossary"), in lieu of the stated
principal amount due at the Maturity Date, will be the Amortized Face Amount of
such Original Issue Discount Note as of the date of such redemption, repayment
or acceleration. For the purposes of determining whether holders of the
requisite amount of Notes outstanding under the Indenture have made a demand or
given a notice or waiver or taken any other action, the outstanding principal
amount of any Original Issue Discount Note shall be deemed to be the Amortized
Face Amount. The "Amortized Face Amount" of an Original Issue Discount Note
shall be the amount equal to (a) the Issue Price of an Original Issue Discount
Note set forth in the applicable Pricing Supplement plus (b) the portion of the
difference between the Issue Price and the principal amount of such Original
Issue Discount Note that has accrued at the yield to maturity set forth in the
Pricing Supplement (computed in accordance with generally accepted United States
bond yield computation principles) at the date as of which the Amortized Face
Amount is calculated, but in no event shall the Amortized Face Amount of such
Original Issue Discount Note exceed its stated principal amount. See also
"United States Federal Taxation - Tax Consequences to U.S. Holders-Original
Issue Discount Notes."
Unless otherwise specified herein, the Pricing Supplement relating to
each Note or Notes will describe the following terms, as applicable: (1) whether
such Note is a Zero-Coupon Note or other Original Issue Discount Note; (2) the
maximum allowable price (which may be expressed as a percentage of the principal
amount of the Note sold) at which such Note will be issued to the public (the
"Issue Price"); (3) the maximum allowable re-allowance to be charged other
dealers on the original sale of such Note; (4) the date on which such Note will
be issued to the public (the "Issue Date"); (5) the Maturity Date of such Note;
(6) the rate per annum at which such Note will bear interest, if any (the
"Interest Rate"); (7) whether the holder of such Note will have the Survivor's
Option; (8) whether such Note may be redeemed at the option of the Company, or
repaid at the option of the holder, prior to its Maturity Date, and if so, the
provisions relating to such redemption or repayment; (9) certain special United
States Federal income tax consequences of the purchase, ownership and
disposition of certain Notes, if any; and (10) any other terms of such Note not
inconsistent with the provisions of the Indenture.
<PAGE>
GLOSSARY
Reference is made to the Indenture and the form of Notes filed as
exhibits to the Registration Statement to which this Prospectus relates for the
full definition of certain terms used in this Prospectus, as well as any
capitalized terms used herein for which no definition is provided. Set forth
below are definitions of certain terms used in this Prospectus with respect to
the Notes.
"Business Day" with respect to any Note means, unless otherwise
specified in the applicable Pricing Supplement, any day, other than a Saturday
or Sunday, that meets the following applicable requirement: such day is not a
day on which banking institutions are authorized or required by law, regulation
or executive order to be closed in The City of New York;
"Interest Payment Date" with respect to any Note means a date (other
than at Maturity) on which, under the terms of such Note, regularly scheduled
interest shall be payable; and
"Maturity Date" with respect to any Note means the date on which such
Note will mature, as specified thereon, and "Maturity" means the date on which
the principal of a Note or an installment of principal becomes due and payable
in full in accordance with its terms and the terms of the Indenture, whether at
its Maturity Date or by declaration of acceleration, call for redemption at the
option of the Company, repayment at the option of the holder, or otherwise.
BOOK-ENTRY; DELIVERY AND FORM
Upon issue, all Notes having the same Issue Date, interest rate, if
any, amortization schedule, if any, Maturity Date and other terms, if any, will
be represented by one or more fully registered global Notes (the "Global
Notes"); provided, however, that no single Global Note shall exceed
$200,000,000. Each such Global Note representing Notes will be deposited with,
or on behalf of, The Depository Trust Company, New York, New York ("DTC") or
other depositary (DTC or such other depositary as is specified in the applicable
Pricing Supplement is herein referred to as the "Depositary") and registered in
the name of Cede & Co., DTC's nominee. Beneficial interests in the Global Notes
will be represented through book-entry accounts of financial institutions acting
on behalf of beneficial owners as direct and indirect participants in DTC.
Investors may elect to hold interests in the Global Notes through either DTC (in
the United States) or Cedel Bank, societe anonyme ("Cedel Bank") or Morgan
Guaranty Trust Company of New York, Brussels Office, as operator of the
Euroclear system ("Euroclear") (in Europe) if they are participants of such
systems, or indirectly through organizations which are participants in such
systems. Cedel Bank and Euroclear will hold interests on behalf of their
participants through customers' securities accounts in Cedel Bank's and
Euroclear's names on the books of their respective depositaries, which in turn
will hold such interests in customers' securities accounts in the depositaries'
names on the books of DTC. Citibank, N.A. will act as depositary for Cedel Bank
and The Chase Manhattan Bank will act as depositary for Euroclear (in such
capacities, the "U.S. Depositaries"). Except as set forth below, the Global
Notes may be transferred, in whole and not in part, only to another nominee of
the Depositary or to a successor of the Depositary or its nominee. Each such
Global Note representing Notes will be deposited with, or on behalf of, the
Depositary and registered in the name of the Depositary or a nominee thereof.
<PAGE>
DTC has advised the Company and the Agents that it is a limited-purpose
trust company organized under the laws of the State of New York, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered under the
Exchange Act. DTC was created to hold securities of its participants and to
facilitate the clearance and settlement of securities transactions among its
participants in such securities through electronic book-entry changes in
accounts of the participants, thereby eliminating the need for physical movement
of securities certificates. DTC's participants include securities brokers and
dealers (including the Agents), banks, trust companies, clearing corporations
and certain other organizations, some of whom (and/or their representatives) own
DTC. Access to DTC's book-entry system is also available to others, such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly.
Persons who are not participants may beneficially own securities held by DTC
only through participants. The rules applicable to DTC and its participants are
on file with the Commission.
Upon the issuance by the Company of Notes represented by a Global Note,
the Depositary will credit, on its book-entry registration and transfer system,
the participants' accounts with the respective principal amounts of the Notes
represented by such Global Note beneficially owned by such participants. The
accounts to be credited shall be designated by the Agents of such Notes.
Ownership of beneficial interests in a Global Note will be limited to
participants or persons that hold interests through participants. Ownership of
beneficial interests in Notes represented by a Global Note or Notes will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the Depositary (with respect to interests of participants
in the Depositary), or by participants in the Depositary or persons that may
hold interests through such participants (with respect to persons other than
participants in the Depositary). The laws of some states require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such limits and such laws may impair the ability to transfer beneficial
interests in a Global Note.
So long as the Depositary for a Global Note, or its nominee, is the
registered owner of the Global Note, the Depositary or its nominee, as the case
may be, will be considered the sole owner or holder of the Notes represented by
such Global Note for all purposes under the Indenture. Except as provided below,
owners of beneficial interests in Notes represented by a Global Note or Notes
will not be entitled to have Notes represented by such Global Note registered in
their names, will not receive or be entitled to receive physical delivery of
Notes in definitive form and will not be considered the owners or holders
thereof under the Indenture.
Accordingly, each person owning a beneficial interest in a Global Note
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a holder under the Indenture or a Global
Note. The Company understands that under existing policy of the Depositary and
industry practices, in the event that the Company requests any action of holders
or that an owner of a beneficial interest in such a Global Note desires to give
any notice or take any action which a holder is entitled to give or take under
the Indenture or a Global Note, the Depositary would authorize the participants
holding the relevant beneficial interests to give such notice or take such
<PAGE>
action. Any beneficial owner that is not a participant must rely on the
contractual arrangements it has directly, or indirectly through its financial
intermediary, with a participant to give such notice or take such action.
Except as otherwise set forth in a Pricing Supplement, payments of
principal of, premium, if any, and interest, if any, on, the Notes represented
by a Global Note registered in the name of the Depositary or its nominee will be
made by the Company through the Trustee to the Depositary or its nominee, as the
case may be, as the registered owner of a Global Note. None of the Company, the
Trustee, any Paying Agent or any other agent of the Company will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Note or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. The Company expects that the Depositary, upon
receipt of any payment of principal, premium, if any, or interest, if any, in
respect of a Global Note, will immediately credit the accounts of the related
participants with payment in amounts proportionate to their respective holdings
in principal amount of beneficial interest in such Global Note as shown on the
records of the Depositary. The Company also expects that payments by
participants to owners of beneficial interests in a Global Note will be governed
by standing customer instructions and customary practices as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name" and will be the responsibility of such participants.
If the Depositary is at any time unwilling or unable to continue as
depositary or ceases to be a clearing agency registered under the Exchange Act
and a successor depositary registered as a clearing agency under the Exchange
Act is not appointed by the Company within 90 days, the Company will issue
certificated Notes in exchange for all the Global Notes. In addition, the
Company may at any time and in its sole discretion determine not to have the
Notes represented by the Global Note and, in such event, will issue certificated
Notes in exchange for all the Global Notes. In either instance, an owner of a
beneficial interest in a Global Note will be entitled to have certificated Notes
equal in principal amount to such beneficial interest registered in its name and
will be entitled to physical delivery of such certificated Notes. Such
certificated Notes shall be registered in such name or names as the Depositary
shall instruct the Trustee. It is expected that such instructions may be based
upon directions received by the Depositary from participants with respect to
beneficial interests in such Global Notes. Certificated Notes so issued will be
issued in denominations of $1,000 or more (in multiples of $1,000) and will be
issued in registered form only, without coupons. No service charge will be made
for any transfer or exchange of such certificated Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that the Company believes to be reliable,
but the Company takes no responsibility for the accuracy thereof.
Cedel Bank advises that it is incorporated under the laws of Luxembourg
as a professional depositary. Cedel Bank holds securities for its participating
organizations ("Cedel Bank Participants") and facilitates the clearance and
settlement of securities transactions between Cedel Bank Participants through
electronic book-entry changes in accounts of Cedel Bank Participants, thereby
<PAGE>
eliminating the need for physical movement of certificates. Cedel Bank provides
to Cedel Bank Participants, among other things, services for safekeeping,
administration, clearance and settlement of international trades securities and
securities lending and borrowing. Cedel Bank interfaces with domestic markets in
several countries. As a professional depositary, Cedel Bank is subject to
regulation by the Luxembourg Monetary Institute. Cedel Bank Participants are
recognized financial institutions around the world, including underwriters,
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations and may include the Agents. Indirect
access to Cedel Bank is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a Cedel Bank Participant, either directly or indirectly.
Distributions with respect to the Notes held beneficially through Cedel
Bank will be credited to cash accounts of Cedel Bank Participants in accordance
with its rules and procedures, to the extent received by the U.S. Depositary for
Cedel Bank.
Euroclear advises that it was created in 1968 to hold securities for
its participants ("Euroclear Participants") and to clear and settle transactions
between Euroclear Participants through simultaneous electronic book-entry
delivery against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and
cash. Euroclear provides various other services, including securities lending
and borrowing and interfaces with domestic markets in several countries.
Euroclear is operated by the Brussels Belgium office of Morgan Guaranty Trust
Company of New York (the "Euroclear Operator"), under contract with Euroclear
Clearance Systems S.C., a Belgian cooperative corporation (the "Cooperative").
All operations are conducted by the Euroclear Operator, and all Euroclear
securities clearance accounts and Euroclear cash accounts are accounts with the
Euroclear Operator, not the Cooperative. The Cooperative establishes policy for
Euroclear on behalf of Euroclear Participants. Euroclear Participants include
banks (including central banks), securities brokers and dealers and other
professional financial intermediaries and may include the Agents. Indirect
access to Euroclear is also available to other firms that clear through or
maintain a custodial relationship with a Euroclear Participant, either directly
or indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Board of Governors of the Federal Reserve System
and the New York State Banking Department, as well as the Belgian Banking
Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear System, and applicable Belgian
law (collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within Euroclear, withdrawals of securities and
cash from Euroclear, and receipts of payments with respect to securities in
Euroclear, withdrawals of securities and cash from Euroclear, and receipts of
payments with respect to securities in Euroclear. All securities in Euroclear
are held on a fungible basis without attribution of specific certificates to
specific securities clearance accounts. The Euroclear Operator acts under the
<PAGE>
Terms and Conditions only on behalf of Euroclear Participants, and has no record
of or relationship with persons holding through Euroclear Participants.
Distributions with respect to Notes held beneficially through Euroclear
will be credited to the cash accounts of Euroclear Participants in accordance
with the Terms and Conditions, to the extent received by the U.S. Depositary for
Euroclear. In the event definitive Notes are issued, the holders thereof will be
able to receive payments thereon and effect transfers thereof at the offices of
a Luxembourg paying agent chosen by the Company.
Individual certificates in respect of Notes will not be issued in
exchange for the Global Notes, except in very limited circumstances. If
Euroclear, Cedel Bank or DTC notifies the Company that it is unwilling or unable
to continue as a clearing system in connection with a Global Note or, in the
case of DTC only, DTC ceases to be a clearing agency registered under the
Exchange Act, and in each case a successor clearing system is not appointed by
the Company within 90 days after receiving such notice from Euroclear, Cedel
Bank or DTC or on becoming aware that DTC is no longer so registered, the
Company will issue or cause to be issued individual certificates in registered
form on registration of transfer of, or in exchange for, book-entry interests in
the Notes represented by such Global Note upon delivery of such Global Note for
cancellation.
Title to book-entry interests in the Notes will pass by book-entry
registration of the transfer within the records of Euroclear, Cedel Bank or DTC,
as the case may be, in accordance with their respective procedures. Book-entry
interests in the Notes may be transferred within Euroclear and within Cedel Bank
and between Euroclear and Cedel Bank in accordance with procedures established
for these purposes by Euroclear and Cedel Bank. Book-entry interests in the
Notes may be transferred within DTC in accordance with procedures established
for this purpose by DTC. Transfers of book-entry interests in the Notes between
Euroclear and Cedel Bank and DTC may be effected in accordance with procedures
established for this purpose by Euroclear, Cedel Bank and DTC.
GLOBAL CLEARANCE AND SETTLEMENT PROCEDURES
Initial settlement for the Notes will be made in immediately available
funds. Secondary market trading between DTC Participants will occur in the
ordinary way in accordance with Depositary rules and will be settled in
immediately available funds using the Depositary's Same-Day Funds Settlement
System. Secondary market trading between Cedel Bank Participants and/or
Euroclear Participants will occur in the ordinary way in accordance with the
applicable rules and operating procedures of Cedel Bank and Euroclear and will
be settled using the procedures applicable to conventional Eurobonds in
immediately available funds.
Cross-market transfers between persons holding directly or indirectly
through the Depositary on the one hand, and directly or indirectly through Cedel
Bank or Euroclear Participants, on the other, will be effected in the Depositary
in accordance with the Depositary rules on behalf of the relevant European
international clearing system by its U.S. Depositary; however, such cross-market
transactions will require delivery of instructions to the relevant European
international clearing system by the counterpart in such system in accordance
<PAGE>
with its rules and procedures and within its established deadlines (European
time). The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to its U.S.
Depositary to take action to effect final settlement on its behalf by delivering
or receiving Notes in the Depositary, and making or receiving payment in
accordance with normal procedures for same-day funds settlement applicable to
the Depositary. Cedel Bank Participants and Euroclear Participants may not
deliver instructions directly to their respective U.S. Depositaries.
Because of time-zone differences, credits of Notes received in Cedel
Bank or Euroclear as a result of a transaction with a DTC Participant will be
made during subsequent securities settlement processing and dated the business
day following the Depositary settlement date. Such credits or any transactions
in such Notes settled during such processing will be reported to the relevant
Euroclear or Cedel Bank Participants on such business day. Cash received in
Cedel Bank or Euroclear as a result of sales of Notes by or through a Cedel Bank
Participant or a Euroclear Participant to a DTC Participant will be received
with value on the Depositary settlement date but will be available in the
relevant Cedel Bank or Euroclear cash account only as of the business day
following settlement in the Depositary.
Although the Depositary, Cedel Bank and Euroclear have agreed to the
foregoing procedures in order to facilitate transfers of Notes among
participants of the Depositary, Cedel Bank and Euroclear, they are under no
obligation to perform or continue to perform such procedures and such procedures
may be changed or discontinued at any time.
INTEREST AND PRINCIPAL PAYMENTS
Owners of beneficial interests in a Note will be paid in accordance
with the Depositary's and the participant's procedures in effect from time to
time as described under "Description of Notes - Book-Entry, Delivery and Form."
Unless otherwise specified in the applicable Pricing Supplement, payments of
principal, and premium, if any, and interest, if any, at Maturity will be made
in immediately available funds upon surrender of the Note at the office of the
Paying Agent, provided that the Note is presented to the Paying Agent in time
for the Paying Agent to make such payments in such funds in accordance with its
normal procedures. Unless otherwise specified in the applicable Pricing
Supplement, principal and, premium, if any, and interest, if any, payable at
Maturity of a Note will be paid by the Paying Agent by wire transfer in
immediately available funds to an account specified by the Depositary. Unless
otherwise specified in the applicable Pricing Supplement, payments of interest
on a Note (other than at Maturity) will be made in same-day funds in accordance
with existing arrangements between the Paying Agent and the Depositary. The
Company will pay any administrative costs imposed by banks in connection with
making payments in immediately available funds, but any tax, assessment or
governmental charge imposed upon payments, including, without limitation, any
withholding tax, will be borne by the holders of the Notes in respect of which
such payments are made.
Certain Notes, including Original Issue Discount Notes, may be
considered to be issued with original issue discount which must be included in
income by U.S. Holders for United States Federal income tax purposes at a
constant rate, prior to the receipt of the cash attributable to that income. See
<PAGE>
"Tax Consequences to U.S. Holders-Original Issue Discount Notes." Unless
otherwise specified in the applicable Pricing Supplement, if the principal of
any Original Issue Discount Note is declared to be due and payable immediately
as described under "Description of Debt Securities-Events of Default," the
amount of principal due and payable with respect to such Note shall be limited
to the aggregate principal amount of such Note multiplied by the sum of its
Issue Price (expressed as a percentage of the aggregate principal amount) plus
the original issue discount amortized from the Issue Date to the date of
declaration which amortization shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting principles in effect
on the date of declaration). Special considerations applicable to any such Notes
will be set forth in the applicable Pricing Supplement.
Each Note will bear interest from and including its Issue Date at the
rate per annum set forth thereon and in the applicable Pricing Supplement until
the principal amount thereof is paid, or made available for payment, in full.
Unless otherwise specified in the applicable Pricing Supplement, interest on
each Note (other than a Zero-Coupon Note) will be payable either monthly,
quarterly, semi-annually or annually on each Interest Payment Date and at
Maturity (or on the date of redemption or repayment if a Note is repurchased by
the Company prior to Maturity pursuant to mandatory or optional redemption
provisions or the Survivor's Option). Interest will be payable to the person in
whose name a Note is registered at the close of business on the Regular Record
Date next preceding each Interest Payment Date; provided, however, interest
payable at Maturity, on a date of redemption or in connection with the exercise
of the Survivor's Option will be payable to the person to whom principal shall
be payable.
Any payment of principal, and premium, if any, or interest required to
be made on a Note on a day which is not a Business Day need not be made on such
day, but may be made on the next succeeding Business Day with the same force and
effect as if made on such day, and no additional interest shall accrue as a
result of such delayed payment. Unless otherwise specified in the applicable
Pricing Supplement, any interest on the Notes will be computed on the basis of a
360-day year of twelve 30-day months. The interest rates the Company will agree
to pay on newly-issued Notes are subject to change without notice by the Company
from time to time, but no such change will affect any Notes already issued or as
to which an offer to purchase has been accepted by the Company.
The Interest Payment Dates for a Note that provides for monthly
interest payments shall be the fifteenth day of each calendar month (or the next
Business Day), commencing in the calendar month that next succeeds the month in
which the Note is issued. In the case of a Note that provides for quarterly
interest payments, the Interest Payment Dates shall be the fifteenth day of
every third month (or the next Business Day), commencing in the third succeeding
calendar month following the month in which the Note is issued. In the case of a
Note that provides for semi-annual interest payments, the Interest Payment dates
shall be the fifteenth day of every sixth month (or the next Business Day),
commencing in the sixth succeeding calendar month following the month in which
the Note is issued. In the case of a Note that provides for annual interest
payments, the Interest Payment Date shall be the fifteenth day of every twelfth
month (or the next Business Day), commencing in the twelfth succeeding calendar
month following the month in which the Note is issued. The Regular Record Date
<PAGE>
with respect to any Interest Payment Date shall be the first day of the calendar
month in which such Interest Payment Date occurs, except that the Regular Record
Date with respect to the final Interest Payment Date shall be the final Interest
Payment Date.
Each payment of interest on a Note shall include accrued interest from
and including the Issue Date or from and including the last day in respect of
which interest has been paid (or duly provided for), as the case may be, to, but
excluding, the Interest Payment Date or Maturity Date, as the case may be.
ORIGINAL ISSUE DISCOUNT NOTES
Notes may be issued at a price less than their stated redemption price
at maturity, other than by an amount which is less than a DE MINIMIS amount
(0.25% of the stated redemption price at maturity multiplied by the number of
complete years to maturity) resulting in such Notes being treated as if they
were issued with original issue discount for United States Federal income tax
purposes ("Original Issue Discount Notes"). Such Original Issue Discount Notes
may currently pay no interest or interest at a rate which at the time of
issuance is below market rates. See "United States Federal Taxation - Tax
Consequences to U.S. Holders - Original Issue Discount Notes." Certain
additional considerations relating to any Original Issue Discount Notes will be
described in the Pricing Supplement relating thereto.
REDEMPTION AND REPAYMENT
Unless otherwise provided in the applicable Pricing Supplement, the
Notes will not be redeemable prior to the Maturity Date at the option of the
Company or repayable prior to the Maturity Date at the option of the holder.
Unless otherwise specified in the applicable Pricing Supplement, the Notes will
not be subject to any sinking fund.
If applicable, the Pricing Supplement relating to each Note will
indicate that the Note will be redeemable at the option of the Company or
repayable at the option of the holder on a date or dates specified prior to its
Maturity Date and, unless otherwise specified in such Pricing Supplement, at a
price equal to 100% of the principal amount thereof, together with accrued
interest to the date of redemption or repayment, unless such Note was issued
with original issue discount, in which case the Pricing Supplement will specify
the amount payable upon such redemption or repayment.
The Company may redeem any of the Notes that are redeemable and remain
outstanding either in whole or from time to time in part, upon not less than 30
nor more than 60 days' notice. Unless otherwise specified in the applicable
Pricing Supplement, if less than all of the Notes with like tenor and terms are
to be redeemed, the Notes to be redeemed shall be selected by the Trustee by
such method as the Trustee shall deem fair and appropriate.
Unless otherwise specified in the applicable Pricing Supplement, in
order for a Note which is prepayable at the option of the holder to be so
prepaid, the Company must receive at least 30 days but not more than 45 days
prior to the repayment date, the global Note with the form entitled "Option to
Elect Repayment" duly completed. Exercise of the repayment option by the holder
<PAGE>
of a Note shall be irrevocable. With respect to the Notes, the Depositary's
nominee is the holder of such Notes and therefore will be the only entity that
can exercise a right to repayment. See "Description of Notes-Book-Entry;
Delivery and Form." In order to ensure that the Depositary's nominee will timely
exercise a right to repayment with respect to a particular beneficial interest
in a Note, the beneficial owner of such interest must instruct the broker or
other direct or indirect participant through which it holds a beneficial
interest in such Note to notify the Depositary of its desire to exercise a right
to repayment. Different firms have different cut-off times for accepting
instructions from their customers and, accordingly, each beneficial owner should
consult the broker or other direct or indirect participant through which it
holds an interest in a Note in order to ascertain the cut-off time by which such
an instruction must be given in order for timely notice to be delivered to the
Depositary. Conveyance of notices and other communications by the Depositary to
participants, by participants to indirect participants and by participants and
indirect participants to beneficial owners of the Notes will be governed by
agreements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
If applicable, the Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws or regulations in
connection with any such repurchase.
The Company may at any time purchase Notes at any price or prices in
the open market or otherwise. Notes so purchased by the Company may, at the
discretion of the Company, be held or resold or surrendered to the Trustee for
cancellation.
REPAYMENT UPON DEATH
The Pricing Supplement relating to any Note will indicate whether the
holder of such Note will have the right to require the Company to repay a Note
prior to its Maturity Date upon the death of the owner of such Note as described
below (the "Survivor's Option"). SEE THE APPLICABLE PRICING SUPPLEMENT TO
DETERMINE WHETHER THE SURVIVOR'S OPTION APPLIES TO ANY PARTICULAR NOTE.
Pursuant to exercise of the Survivor's Option, if applicable, the
Company will repay any Note (or portion thereof) properly tendered for repayment
by or on behalf of the person (the "Representative") that has authority to act
on behalf of the deceased owner of the beneficial interest in such Note under
the laws of the appropriate jurisdiction (including, without limitation, the
personal representative, executor, surviving joint tenant or surviving tenant by
the entirety of such deceased beneficial owner) at a price equal to 100% of the
principal amount of the beneficial interest of the deceased owner in such Note
plus accrued interest to the date of such repayment (or at a price equal to the
Amortized Face Amount for Original Issue Discount Notes and Zero-Coupon Notes on
the date of such repayment), subject to the following limitations. The Company
may, in its sole discretion, limit the aggregate principal amount of Notes as to
which exercises of the Survivor's Option will be accepted in any calendar year
(the "Annual Put Limitation") to one percent (1%) of the outstanding aggregate
<PAGE>
principal amount of the Notes as of the end of the most recent fiscal year, but
not less than $1,000,000 in any such calendar year, or such greater amount as
the Company in its sole discretion may determine for any calendar year, and may
limit to $200,000, or such greater amount as the Company in its sole discretion
may determine for any calendar year, the aggregate principal amount of Notes (or
portions thereof) as to which exercise of the Survivor's Option will be accepted
in such calendar year with respect to any individual deceased owner or
beneficial interests in such Notes (the "Individual Put Limitation"). Moreover,
the Company will not make principal repayments pursuant to exercise of the
Survivor's Option in amounts that are less than $1,000, and, in the event that
the limitations described in the preceding sentence would result in the partial
repayment of any Note, the principal amount of such Note remaining outstanding
after repayment must be at least $1,000 (the minimum authorized denomination of
the Notes). Any Note (or portion thereof) tendered pursuant to exercise of the
Survivor's Option may not be withdrawn.
Each Note (or portion thereof) that is tendered pursuant to valid
exercise of the Survivor's Option will be accepted promptly in the order all
such Notes are tendered, except for any Note (or portion thereof) the acceptance
of which would contravene (i) the Annual Put Limitation, if applied, or (ii) the
Individual Put Limitation, if applied, with respect to the relevant individual
deceased owner of beneficial interests therein. If, as of the end of any
calendar year, the aggregate principal amount of Notes (or portions thereof)
that have been accepted pursuant to exercise of the Survivor's Option during
such year has not exceeded the Annual Put Limitation, if applied, for such year,
any exercise(s) of the Survivor's Option with respect to Notes (or portions
thereof) not accepted during such calendar year because such acceptance would
have contravened the Individual Put Limitation, if applied, with respect to an
individual deceased owner of beneficial interests therein will be accepted in
the order all such Notes (or portions thereof) were tendered, to the extent that
any such exercise would not trigger the Annual Put Limitation for such calendar
year. Any Note (or portion thereof) accepted for repayment pursuant to exercise
of the Survivor's Option will be repaid no later than the first Interest Payment
Date that occurs 20 or more calendar days after the date of such acceptance.
Each Note (or any portion thereof) tendered for repayment that is not accepted
in any calendar year due to the application of the Annual Put Limitation will be
deemed to be tendered in the following calendar year in the order in which all
such Notes (or portions thereof) were originally tendered, unless any such Note
(or portion thereof) is withdrawn by the Representative for the deceased owner
prior to its repayment. In the event that a Note (or any portion thereof)
tendered for repayment pursuant to valid exercise of the Survivor's Option is
not accepted, the Trustee will deliver a notice by first-class mail to the
registered holder thereof at its last known address as indicated in the Note
Register, that states the reason such Note (or portion thereof) has not been
accepted for payment.
Subject to the foregoing, in order for a Survivor's Option to be
validly exercised with respect to any Note (or portion thereof), the Trustee
must receive from the Representative of the deceased owner (i) a written request
for repayment signed by the Representative, and such signature must be
guaranteed by a member firm of a registered national securities exchange or of
the National Association of Securities Dealers, Inc. (the "NASD") or a
commercial bank or trust company having an office or correspondent in the United
States, (ii) tender of the Note (or portion thereof) to be repaid, (iii)
appropriate evidence satisfactory to the Trustee that (A) the Representative has
authority to act on behalf of the deceased beneficial owner, (B) the death of
such beneficial owner has occurred and (C) the deceased was the owner of a
beneficial interest in such Note at the time of death, (iv) if applicable, a
properly executed assignment or endorsement, and (v) if the beneficial interest
in such Note is held by a nominee of the deceased beneficial owner, a
<PAGE>
certificate satisfactory to the Trustee from such nominee attesting to the
deceased's ownership of a beneficial interest in such Note. Subject to the
Company's right hereunder to limit the aggregate principal amount of Notes as to
which exercises of the Survivor's Option shall be accepted in any one calendar
year, all questions as to the eligibility or validity of any exercise of the
Survivor's Option will be determined by the Trustee, in its sole discretion,
which determination will be final and binding on all parties.
The death of a person owning a Note in joint tenancy or tenancy by the
entirety with another or others will be deemed the death of the holder of the
Note, and the entire principal amount of the Note so held will be subject to
repayment, together with interest accrued thereon to the repayment date. The
death of a person owning a Note by tenancy in common will be deemed the death of
a holder of a Note only with respect to the deceased holder's interest in the
Note so held by tenancy in common; except that in the event a Note is held by
husband and wife as tenants in common, the death of either will be deemed the
death of the holder of the Note, and the entire principal amount of the Note so
held will be subject to repayment. The death of a person who, during his or her
lifetime, was entitled to substantially all of the beneficial interests of
ownership of a Note, will be deemed the death of the holder thereof for purposes
of this provision, regardless of the registered holder, if such beneficial
interest can be established to the satisfaction of the Trustee. Such beneficial
interest will be deemed to exist in typical cases of nominee ownership,
ownership under the Uniform Gifts to Minors Act, community property or other
joint ownership arrangements between a husband and wife and trust arrangements
where one person has substantially all of the beneficial ownership interest in
the Note during his or her lifetime.
For Notes represented by a Global Note, the Depositary or its nominee
will be the holder of such Note and therefore will be the only entity that can
exercise the Survivor's Option for such Note. To obtain repayment pursuant to
exercise of the Survivor's Option with respect to such Note, the Representative
must provide to the broker or other entity through which the beneficial interest
in such Note is held by the deceased owner (i) the documents described in
clauses (i) and (iii) of the second preceding paragraph and (ii) instructions to
such broker or other entity to notify the Depositary of such Representative's
desire to obtain repayment pursuant to exercise of the Survivor's Option. Such
broker or other entity will provide to the Trustee (i) the documents received
from the Representative referred to in clause (i) of the preceding sentence and
(ii) a certificate satisfactory to the Trustee from such broker or other entity
stating that it represents the deceased beneficial owner. Such broker or other
entity will be responsible for disbursing any payments it receives pursuant to
exercise of the Survivor's Option to the appropriate Representative. See
"Description of Notes - Delivery and Form."
A REPRESENTATIVE MAY OBTAIN THE FORMS USED TO EXERCISE THE SURVIVOR'S
OPTION FROM THE CHASE MANHATTAN BANK, THE TRUSTEE, AT 450 WEST 33RD STREET, 15TH
FLOOR, NEW YORK, NEW YORK 10001, OR CALL THE GLOBAL TRUST SERVICE GROUP AT (212)
946-3159, DURING NORMAL BUSINESS HOURS.
<PAGE>
ELIGIBILITY FOR STRIPPING
Certain issues of Notes designated by the Company (the "Eligible
Notes") will be eligible to be separated ("stripped") into their separate
Interest Components and Principal Components (each as defined below) on the
book-entry system of DTC. The components of an Eligible Note are: (i) each
future interest payment due on or prior to the Maturity Date or, if the Eligible
Note is subject to redemption or principal repayment prior to the Maturity Date,
the first date on which the Eligible Note is subject to redemption or repayment
(in either case, the "Cut-off Date") (each, an "Interest Component") and (ii)
the principal payment plus any interest payments due after the Cut-off Date (the
"Principal Component"). Each Interest Component and Principal Component (each a
"Component") will receive a CUSIP number.
An issue of Notes that DTC is capable of stripping on its book-entry
records may be designated by the Company as eligible to be stripped into
Components at the time of original issuance of such Notes. The Company is under
no obligation, however, to designate any issue of Notes as eligible to be
stripped into Components.
For an Eligible Note to be stripped into Components, the principal
amount of the Eligible Note must be in an amount that, based on the stated
interest rate of the Eligible Note, will produce an interest payment of $1,000
or an integral multiple thereof on each Interest Payment Date for such Note.
In some cases, certain Interest Components of two or more issues of
Notes may be due on the same day. Such Interest Components may have the same or
different CUSIP numbers. It currently is expected that most Interest Components
due on the same day (regardless of Note issue) will have the same CUSIP number.
However, the Company may designate Interest Components from an issue of Notes to
receive CUSIP numbers different than the CUSIP numbers of Interest Components
due on the same day from one or more other issues of Notes. The Company also may
designate at any time that any or all Interest Components of issues of Notes
originally issued on or after a specified time will have CUSIP numbers different
than Interest Components of issues of Notes originally issued prior to such
time.
The Components may be maintained and transferred on the book-entry
system of DTC in integral multiples of $1,000. Payments on Components will be
made in U.S. dollars on the applicable payment dates (or the succeeding Business
Day if payment on the related Note is made on such succeeding Business Day as
defined in "Description of Notes -- Glossary") by credit of the payment amount
to DTC or its nominee, as the case may be, as the registered owner of a
Component. The Company expects that it will credit the accounts of the related
participants for payment amounts in the same manner as for Notes represented by
a Global Note as set forth in "Description of Notes - Book-Entry; Delivery and
Form" above.
If any modification, amendment or supplement of the terms of an issue
of Notes requires any consent of holders of Notes, such consent with respect to
Notes that have been stripped is to be provided by the holders of Principal
Components. See "Modifications of the Indenture." Holders of Interest Components
will have no right to give or withhold such consent.
<PAGE>
Currently, at the request of a holder of a Principal Component and all
applicable unmatured Interest Components and on the Component holder's payment
of a fee (presently DTC's fee applicable to on-line book-entry securities
transfers), DTC will restore ("reconstitute") the Principal Components of a
stripped Note and the applicable unmatured Interest Components (all in
appropriate amounts) to such Note in fully constituted form. Generally, for
purposes of reconstituting a Note, the Principal Component of an issue of Notes
may be combined with either Interest Components of such issue or Interest
Components, if any, from other issues of Notes that have the same CUSIP numbers
as the unmatured Interest Components of such issue. Component holders wishing to
reconstitute Components into a Note also must comply with all applicable
requirements and procedures of DTC relating to the stripping and reconstitution
of securities.
The preceding discussion is based on the Company's understanding of the
manner in which DTC currently strips and reconstitutes eligible securities on
the Fed Book-Entry System. DTC may cease stripping or reconstituting Eligible
Notes or may change the manner in which this is done or the requirements,
procedures or charges therefor at any time without notice.
PAYMENT OF ADDITIONAL AMOUNTS
The Company will pay to the holder of any Note who is a United States
Alien (as defined below) such additional amounts (the "Additional Amounts") as
may be necessary in order that every net payment in respect of the principal,
premium, if any, or interest, if any, on such Note, after deduction or
withholding by the Company or any Paying Agent for or on account of any present
or future tax, assessment or governmental charge imposed upon or as a result of
such payment by the United States or any political subdivision or taxing
authority thereof or therein, will not be less than the amount provided for in
such Note to be then due and payable before any such deduction or withholding
for or on account of any such tax, assessment or governmental charge; provided,
however, that the foregoing obligation to pay Additional Amounts shall not apply
to:
(a) any tax, assessment or other governmental charge which would
not have been so imposed but for (i) the existence of any present or
former connection between such holder (or a fiduciary, settlor,
beneficiary, member, or shareholder of, or holder of a power over,
such holder, if such holder is an estate, trust, partnership or
corporation) and the United States, including, without limitation,
such holder (or such fiduciary, settlor, beneficiary, member,
shareholder of, or holder of a power) being or having been a citizen
or resident or treated as a resident thereof or being or having been
engaged in a trade or business therein or being or having been present
therein or having or having had a permanent establishment therein, or
(ii) such holder's present or former status as a personal holding
company or foreign personal holding company or controlled foreign
corporation for United States Federal income tax purposes or
corporation which accumulates earnings to avoid United States Federal
income tax;
(b) any tax, assessment or other governmental charge which would not have
been so imposed but for the presentation by the holder of such Note for
payment on a date more than 10 days after the date on which such
payment became due and payable or the date on which payment thereof is
duly provided for, whichever occurs later;
<PAGE>
(c) any estate, inheritance, gift, sales, transfer, personal property or
excise tax or any similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments in respect of principal of,
premium, if any, or interest, if any, on any Note;
(e) any tax, assessment or other governmental charge imposed on interest
received by a holder or beneficial owner of a Note who actually or
constructively owns 10% or more of the total combined voting power of
all classes of stock of the Company entitled to vote within the meaning
of Section 871(h)(3) of the Internal Revenue Code of 1986, as amended;
(f) any tax, assessment or other governmental charge imposed as a result
of the failure to comply with (i) certification, information,
documentation, reporting or other similar requirements concerning the
nationality, residence, identity or connection with the United States
of the holder or beneficial owner of the Note, if such compliance is
required by statute, or by regulation of the United States Treasury
Department, as a precondition to relief or exemption from such tax,
assessment or other governmental charge (including backup withholding)
or (ii) any other certification, information, documentation, reporting
or other similar requirements under United States income tax laws or
regulations that would establish entitlement to otherwise applicable
relief or exemption from such tax, assessment or other governmental
charge;
(g) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment of the principal of,
premium, if any, or interest, if any, on any Note, if such payment can
be made without such withholding by at least one other Paying Agent; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g).
Nor will Additional Amounts be paid to any holder who is a fiduciary or
partnership or other than the sole beneficial owner of the Note to the extent a
settlor or beneficiary with respect to such fiduciary or a member of such
partnership or a beneficial owner of the Note would not have been entitled to
payment of the Additional Amounts had such beneficiary, settlor, member or
beneficial owner been the holder of the Note.
The term "United States Alien" means any person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident alien
individual, or a foreign partnership, one or more of the members of which is a
foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
Any reference in this Prospectus or any applicable Pricing Supplement
to principal or interest or both in respect of the Notes shall be deemed to
include (i) a reference to any additional amounts which may be payable under
<PAGE>
this heading "Payment of Additional Amounts," (ii) in relation to Zero Coupon
Notes, the Amortized Face Amount, and (iii) any premium and any other amounts
which may be payable in respect of the Notes.
The Notes are subject in all cases to any tax, fiscal or other law or
regulation or administrative or judicial interpretation applicable thereto.
Except as specifically provided under this heading "Payment of Additional
Amounts" and under the heading "Description of Notes -- Redemption for Tax
Reasons", the Company shall not be required to make any payment with respect to
any tax, assessment or governmental charge imposed by any government or a
political subdivision or taxing authority thereof or therein. As used under this
heading "Payment of Additional Amounts" and under the headings "Description of
Notes -- Redemption for Tax Reasons" and "United States Taxation of Non-United
States Persons," the term "United States" means the United States of America
(including the States and the District of Columbia) and its territories, its
possessions and other areas subject to its jurisdiction. "United States person"
means any individual who is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States, or any political subdivision thereof or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source and "non-United States person" has the meaning set
forth in "United States Taxation of Non-United States Persons" below.
REDEMPTION FOR TAX REASONS
If, as a result of any change in or amendment to the laws (including
any regulations or rulings promulgated thereunder) of the United States or any
political subdivision thereof or therein affecting taxation, or any change in
the official application or interpretation of such laws, including any official
proposal for such a change, amendment or change in the application or
interpretation of such laws, which change, amendment, application or
interpretation is announced or becomes effective after the date of this
Prospectus or which proposal is made after such date, or as a result of any
action taken by any taxing authority of the United States which action is taken
or becomes generally known after such date, or as a result of any action taken
by any taxing authority of the United States which action is taken or becomes
generally known after such date, or any commencement of a proceeding in a court
of competent jurisdiction in the United States after such date, whether or not
such action was taken or such proceeding was brought with respect to the
Company, there is, in such case, in the written opinion of independent legal
counsel of recognized standing to the Company, a material increase in the
probability that the Company has or may become obligated to pay Additional
Amounts (as described above under "Payment of Additional Amounts"), and the
Company in its business judgment, determines that such obligation cannot be
avoided by the use of reasonable measures available to the Company, not
including assignment of the Notes, the Notes may be redeemed, as a whole but not
in part, at the option of the Company at any time thereafter, upon notice to the
Trustee and the holders of the Notes in accordance with the provisions of the
Indenture at a redemption price equal to 100% of the principal amount of the
Notes to be redeemed together with accrued interest thereon to the date fixed
for redemption.
<PAGE>
UNITED STATES FEDERAL TAXATION
GENERAL
In the opinion of the Company's tax counsel, the following general
summary describes all material United States Federal income and estate tax
consequences of the ownership and disposition of the Notes. This summary
provides general information only and is directed solely to original holders
purchasing Notes at the "issue price" (as defined below) and who hold the Notes
as capital assets within the meaning of Section 1221 of the Internal Revenue
Code of 1986, as amended (the "Code"), and does not purport to discuss all
United States Federal income tax consequences that may be applicable to
particular categories of investors that may be subject to special rules, such as
certain financial institutions, insurance companies, dealers in securities,
persons holding Notes as part of a "straddle" conversion transaction, hedging or
other integrated transaction or persons who have ceased to be United States
citizens or to be taxed as resident aliens. In addition, the tax consequences of
holding a particular Note will depend, in part, on the particular terms of such
Note as set forth in the applicable Pricing Supplement. Finally, this summary
does not discuss Original Issue Discount Notes which qualify as "applicable
high-yield discount obligations" under Section 163(i) of the Code. Holders of
Original Issue Discount Notes which are "applicable high-yield discount
obligations" may be subject to special rules which will be set forth in an
applicable Pricing Supplement. Holders are advised to consult their own tax
advisors with regard to the application of the United States Federal income and
estate tax laws to their particular situations as well as any tax consequences
arising under the laws of any state, local or foreign tax jurisdiction.
This summary is based on the Code, United States Treasury Regulations
(including proposed regulations and temporary regulations) promulgated
thereunder, rulings, official pronouncements and judicial decisions as of the
date of this Prospectus. The authorities on which this summary is based are
subject to change or differing interpretations, which could apply retroactively,
so as to result in United States Federal income tax consequences different from
those discussed below.
TAX CONSEQUENCES TO U.S. HOLDERS
For purposes of the following discussion, "U.S. Holder" means a
beneficial owner of a Note that is (i) for United States Federal income tax
purposes a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or of any political subdivision thereof, (iii) an estate or trust
the income of which is subject to United States Federal income taxation
regardless of its source, or (iv) any other Holder whose income is effectively
connected with such Holder's conduct of a United States trade or business. The
term also includes certain former citizens or long-term permanent residents of
the United States.
PAYMENTS OF INTEREST
Interest on a Note that is not an Original Issue Discount Note will
generally be taxable to a U.S. Holder as ordinary interest income at the time it
is accrued or is received in accordance with the U.S. Holder's method of
accounting for tax purposes.
<PAGE>
All payments of interest on a Note that matures one year or less from
its date of issuance will be included in the stated redemption price at the
maturity of the Note and will be taxed in the manner described below under
"Original Issue Discount Notes".
Special rules governing the treatment of interest paid with respect to
Original Issue Discount Notes are described under "Original Issue Discount
Notes" below.
ORIGINAL ISSUE DISCOUNT NOTES
The following summary is generally based upon the Treasury Regulations
concerning the treatment of debt instruments issued with original issue discount
(the "OID Regulations"). Under the OID Regulations, a Note that is issued for an
amount less than its stated redemption price at maturity will generally be
considered to have been issued at an original issue discount. The issue price of
a Note is equal to the first price to the public (not including bond houses,
brokers or similar persons or organizations acting in the capacity of
underwriters, placement agents or wholesalers) at which a substantial amount of
the Notes is sold for money. The stated redemption price at maturity of a Note
is generally equal to the sum of all payments to be made on such Note other than
"qualified stated interest" payments. With respect to a Note, "qualified stated
interest" is stated interest unconditionally payable in cash or property (other
than debt instruments of the issuer) at least annually during the entire term of
the Note and equal to the outstanding principal balance of the Note multiplied
by a single fixed rate of interest.
Notwithstanding the general definition of original issue discount
above, a Note will not be considered to have been issued with an original issue
discount if the amount of such original issue discount is less than a DE MINIMIS
amount equal to 0.25% of the stated redemption price at maturity multiplied by
the number of complete years to maturity (or, in the case of a Note providing
for payments prior to maturity of amounts other than qualified stated interest,
the weighted average maturity). Holders of Notes with a DE MINIMIS amount of
original issue discount will include such original issue discount in income, as
capital gain, on a pro rata basis as principal payments are made on the Note.
A U.S. Holder of an Original Issue Discount Note (other than certain
U.S. Holders of Short-Term Original Issue Discount Notes, as defined below) will
be required to include qualified stated interest in income at the time it is
received or accrued in accordance with such U.S. Holder's method of accounting.
A U.S. Holder of an Original Issue Discount Note that matures more than
one year from its date of issuance will be required to include original issue
discount in income as it accrues, in accordance with a constant yield method
based on a compounding of interest, before the receipt of cash payments
attributable to such income. The amount of original issue discount includable in
income is equal to the sum of the "daily portions" of the original issue
discount for each day during the taxable year on which the U.S. Holder held such
Note. The "daily portion" is the original issue discount for the "accrual
period" that is allocated ratably to each day in the accrual period. The
original issue discount for an accrual period is equal to the excess, if any, of
(a) the product of the "adjusted issue price" of an Original Issue Discount Note
<PAGE>
at the beginning of such accrual period and its "yield to maturity" over (b) the
amount of any qualified stated interest allocable to the accrual period. The
"accrual period" is the interval (not to exceed one year) that ends no later
than the date of any scheduled payment of principal or interest. The Company
will specify the accrual period it intends to use in the applicable Pricing
Supplement but a U.S. Holder is not required to use the same accrual period for
purposes of determining the amount of original issue discount includable in its
income for a taxable year. The adjusted issue price of a Note at the beginning
of an accrual period is equal to the issue price of such Note, increased by the
aggregate amount of original issue discount with respect to such Note that
accrued in prior accrual periods and was previously included in the income of
the U.S. Holder, and reduced by the amount of any payment on the Note in prior
accrual periods of amounts other than a payment of qualified stated interest.
Under these rules, U.S. Holders generally will have to include in income
increasingly greater amounts of original issue discount in successive accrual
periods.
Under the OID Regulations, a U.S. Holder may make an election (the
"Constant Yield Election") to include in gross income its entire return on a
Note (i.e., the excess of all remaining payments to be received on the Note over
the amount paid for the Note by such U.S. Holder) in accordance with a constant
yield method based on the compounding of interest. Special rules apply to
elections made with respect to Notes with amortizable bond premium and U.S.
Holders considering such an election should consult their own tax advisor.
In general, a cash method U.S. Holder of an Original Issue Discount
Note that matures one year or less from its date of issuance (a "Short-Term
Original Issue Discount Note") is not required to accrue original issue discount
on such Note for United States Federal income tax purposes unless it elects to
do so. U.S. Holders who make such an election, U.S. Holders who report income
for United States Federal income tax purposes on the accrual method and certain
other U.S. Holders, including banks and dealers in securities, are required to
include original issue discount in income on such Short-Term Original Issue
Discount Notes as it accrues on a straight-line basis, unless an election is
made to use the constant yield method (based on a daily compounding). In the
case of a U.S. Holder who is not required and does not elect to include original
issue discount in income currently, any gain realized on the sale, exchange or
redemption of the Short-Term Original Issue Discount Note will be ordinary
income to the extent of the original issue discount accrued. In addition, such
U.S. Holder will be required to defer deductions for any interest paid on
indebtedness incurred to purchase or carry Short-Term Original Issue Discount
Notes in an amount not exceeding the deferred interest income, until such
deferred interest income is recognized.
Certain Notes may be redeemable at the option of the Company prior to
the Maturity Date, or repayable at the option of the U.S. Holder prior to the
Maturity Date. Notes containing such features may be subject to rules that
differ from the general rules discussed above. U.S. Holders intending to
purchase Notes with any such features should carefully examine the applicable
Pricing Supplement and should consult with their own tax advisors with respect
to such features, since the tax consequences with respect to original issue
discount will depend, in part, on the particular terms and the particular
features of the purchased Note.
<PAGE>
BOND PREMIUM
If a U.S. Holder purchases a Note for an amount that is greater than
the stated redemption price at maturity, such Holder will be considered to have
purchased such Note with "amortizable bond premium" equal in amount to such
excess, and generally will not be required to include any original issue
discount in income. A U.S. Holder may elect (in accordance with applicable Code
provisions) to amortize such premium, using a constant yield method, over the
remaining term of the Note (where such Note is not callable prior to its
maturity date). If such Note may be called prior to maturity after the U.S.
Holder has acquired it, the amount of amortizable bond premium is determined
with reference to either the amount payable on maturity or, if it results in a
smaller premium, attributable to the period through the earlier call date with
reference to the amount payable on the earlier call date. A U.S. Holder who
elects to amortize bond premium must reduce his tax basis in the Note by the
amount of the premium amortized in any year. An election to amortize bond
premium applies to all taxable debt obligations then owned and thereafter
acquired by the U.S. Holder and may be revoked only with the consent of the
Internal Revenue Service. If a Holder makes a Constant Yield Election for a Note
with amortizable bond premium, such election will result in a deemed election to
amortize bond premium for all of the Holder's debt instruments with amortizable
bond premium and may be revoked only with the permission of the Internal Revenue
Service with respect to debt instruments acquired after revocation.
SALE, EXCHANGE OR REDEMPTION OF THE NOTES
Upon the sale, exchange or redemption of a Note, a U.S. Holder will
recognize taxable gain or loss equal to the difference between the amount
realized on the sale, exchange or redemption (except to the extent such amount
is attributable to accrued and unpaid interest) and the U.S. Holder's adjusted
tax basis in the Note. A U.S. Holder's adjusted tax basis in a Note will
generally be the U.S. dollar cost of the Note to such U.S. Holder, increased by
the amount of any original issue discount previously included in income by the
U.S. Holder with respect to such Note and reduced by any amortized premium and
any principal payments received by the U.S. Holder and, in the case of an
Original Issue Discount Note, by the amounts of any other payments that do not
constitute qualified stated interest.
In general, gain or loss realized on the sale, exchange or redemption
of a Note will be capital gain or loss (except in the case of a Short-Term
Original Issue Discount Note, to the extent of any original issue discount not
previously included in such U.S. Holder's taxable income). Such gain will be
long-term or mid-term capital gain or loss if at the time of sale, exchange or
redemption, the Note has been held for more than eighteen months or more than
twelve months, but less than eighteen months, respectively. Under current law,
the excess of net long-term and mid-term net capital gains over net short-term
capital losses is taxed at a lower rate than ordinary income for certain
non-corporate taxpayers. The distinction between capital gain or loss is also
relevant for purposes of, among other things, limitations on the deductibility
of capital losses.
If a U.S. Holder disposes of only a portion of a Note pursuant to a
redemption or repayment (including the Survivor's Option, if applicable), such
disposition will be treated as a pro rata prepayment in retirement of a portion
of a debt instrument. Generally, the resulting gain or loss would be calculated
by assuming that the original Note being tendered consists of two instruments,
one that is retired (or repaid), and one that remains outstanding. The adjusted
<PAGE>
issue price, U.S. Holder's adjusted basis, and the accrued but unpaid original
issue discount of the original Note, determined immediately before the
disposition, would be allocated between these two instruments based on the
portion of the instrument that is treated as retired by the pro rata prepayment.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Backup withholding and information reporting requirements may apply to
certain payments of principal, premium and interest (including original issue
discount) on a Note, and to payments of proceeds of the sale or redemption of a
Note, to certain non-corporate U.S. Holders. The Company, its agent, a broker,
the relevant Trustee or any paying agent, as the case may be, will be required
to withhold from any payment a tax equal to 31 percent of such payment if the
U.S. Holder fails to furnish or certify his correct taxpayer identification
number (social security number or employer identification number) to the payor
in the manner required, fails to certify that such U.S. Holder is not subject to
backup withholding, or otherwise fails to comply with the applicable
requirements of the backup withholding rules. Any amounts withheld under the
backup withholding rules from a payment to a Holder may be credited against such
Holder's United States Federal income tax and may entitle such Holder to a
refund, provided that the required information is furnished to the United States
Internal Revenue Service.
CONSEQUENCES TO NON-UNITED STATES PERSONS
As used herein, the term "non-United States person" means an owner of a
Note that is, for United States Federal income tax purposes, (i) a nonresident
alien individual, (ii) a foreign corporation, (iii) a nonresident alien
fiduciary of a foreign estate or trust or (iv) a foreign partnership one or more
of the members of which is, for United States Federal income tax purposes, a
nonresident alien individual, a foreign corporation or a nonresident alien
fiduciary of a foreign estate or trust.
INCOME AND WITHHOLDING TAX
Subject to the discussion of backup withholding below:
(a) payments of principal and interest on a Note that is beneficially
owned by a non-United States person will not be subject to United
States Federal withholding tax provided, that in the case of interest:
(1) (i) the beneficial owner does not actually or constructively own
10% or more of the total combined voting power of all classes of stock
of the Company entitled to vote, (ii) the beneficial owner is not a
controlled foreign corporation that is related, directly or
indirectly, to the Company through stock ownership and (iii) either
(A) the beneficial owner of the Note certifies to the person otherwise
required to withhold United States Federal income tax from such
interest, under penalties of perjury, that it is not a United States
person and provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds
customers' securities in the ordinary course of its trade or business
(a "financial institution") and holds the Note certifies to the person
otherwise required to withhold United States Federal income tax from
such interest, under penalties of perjury, that such statement has
<PAGE>
been received from the beneficial owner by it or by a financial
institution between it and the beneficial owner and furnishes the
payor with a copy thereof; (2) the beneficial owner is entitled to the
benefits of an income tax treaty under which the interest is exempt
from United States Federal withholding tax and the beneficial owner of
the Note or such owner's agent provides an IRS Form 1001 claiming the
exemption; or (3) the beneficial owner conducts a trade or business in
the United States to which the interest is effectively connected and
the beneficial owner of the Note or such owner's agent provides an IRS
Form 4224 (or, after December 31, 1998, a Form W-8); provided that in
each such case, the relevant certification or IRS Form is delivered
pursuant to applicable procedures and is properly transmitted to the
person otherwise required to withhold United States Federal income
tax, and none of the persons receiving the relevant certification or
IRS Form has actual knowledge that the certification or any statement
on the IRS Form is false;
(b) a non-United States person will not be subject to United States Federal
withholding tax on any gain realized on the sale, exchange or other
disposition of a Note unless the gain is effectively connected with the
beneficial owner's trade or business in the United States or, in the
case of an individual, the holder is present in the United States for
183 days or more in the taxable year in which the sale, exchange or
other disposition occurs and certain other conditions are met; and
(c) Under Code Section 2105(b), a Note owned by an individual who at the
time of death is not, for United States Federal estate tax purposes, a
citizen or resident of the United States generally will not be subject
to United States Federal estate tax a result of such individual's death
if the individual does not actually or constructively own 10% or more
of the total combined voting power of all classes of stock of the
Company entitled to vote and at the time of such individual's death,
the income on the Note would not have been effectively connected with a
U.S. trade or business of the individual.
With respect to the certification requirement referred to in
subparagraph (a), for Notes held by a foreign partnership, under current law,
the Form W-8 may be provided by the foreign partnership. However, for interest
and disposition proceeds paid with respect to a Note after December 31, 1998,
unless the foreign partnership has entered into a withholding agreement with the
Internal Revenue Service, a foreign partnership will be required, in addition to
providing an intermediary Form W-8, to attach an appropriate certification by
each partner. Prospective investors, including foreign partnerships and their
partners, should consult their tax advisors regarding possible additional
reporting requirements.
If a non-United States person holding a Note is engaged in a trade or
business in the United States, and if interest on the Note (or gain realized on
its sale, exchange or other disposition) is effectively connected with the
conduct of such trade or business, such holder, although exempt from the
withholding tax discussed in the preceding paragraphs, will generally be subject
to regular United States income tax on such effectively connected income in the
same manner as if it were a United States person. UNDER RECENTLY FINALIZED
UNITED STATES TREASURY REGULATIONS, SUCH A HOLDER MAY ALSO NEED TO PROVIDE A
UNITED STATES TAXPAYER IDENTIFICATION NUMBER ON THE FORMS REFERRED TO IN
PARAGRAPH (A) ABOVE IN ORDER TO MEET THE REQUIREMENTS SET FORTH ABOVE. In
<PAGE>
addition, if such holder is a foreign corporation, it may be subject to a 30%
branch profits tax (unless reduced or eliminated by an applicable treaty) of its
effectively connected earnings and profits for the taxable year, subject to
certain adjustments. For purposes of the branch profits tax, interest on, and
any gain recognized on the sale, exchange or other disposition of, a Note will
be included in the effectively connected earnings and profits of such holder if
such interest or gain, as the case may be, is effectively connected with the
conduct by such holder of a trade or business in the United States.
EACH HOLDER OF A NOTE SHOULD BE AWARE THAT IF IT DOES NOT PROPERLY
PROVIDE THE REQUIRED IRS FORM, OR IF THE IRS FORM (OR, IF PERMISSIBLE, A COPY OF
SUCH FORM) IS NOT PROPERLY TRANSMITTED TO AND RECEIVED BY THE UNITED STATES
PERSON OTHERWISE REQUIRED TO WITHHOLD UNITED STATES FEDERAL INCOME TAX, INTEREST
ON THE NOTE MAY BE SUBJECT TO UNITED STATES WITHHOLDING TAX AT A 30% RATE AND
THE HOLDER (INCLUDING THE BENEFICIAL OWNER) WILL NOT BE ENTITLED TO ANY
ADDITIONAL AMOUNTS FROM THE COMPANY DESCRIBED UNDER THE HEADING "DESCRIPTION OF
NOTES -- PAYMENT OF ADDITIONAL AMOUNTS" WITH RESPECT TO SUCH TAX. SUCH TAX,
HOWEVER, MAY IN CERTAIN CIRCUMSTANCES BE ALLOWED AS A REFUND OR AS A CREDIT
AGAINST SUCH HOLDER'S UNITED STATES FEDERAL INCOME TAX. THE FOREGOING DOES NOT
DEAL WITH ALL ASPECTS OF FEDERAL INCOME TAX WITHHOLDING THAT MAY BE RELEVANT TO
FOREIGN HOLDERS OF THE NOTES. INVESTORS ARE ADVISED TO CONSULT THEIR OWN TAX
ADVISORS FOR SPECIFIC ADVICE CONCERNING THE OWNERSHIP AND DISPOSITION OF NOTES.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Under current Treasury Regulations, backup withholding (imposed at the
rate of 31%) will not apply to payments made by the Company or a paying agent to
a holder in respect of a Note if the certifications required by Section 871(h)
and 881(c) of the Code, which are described above, are received, provided in
each case that the Company or the paying agent, as the case may be, does not
have actual knowledge that the payee is a United States person.
Under current Treasury Regulations, payments of the proceeds from the
sale, exchange or other disposition of a Note made to or through a foreign
office of a broker generally will not be subject to information reporting or
backup withholding, except that if the broker is a United States person, a
controlled foreign corporation for United States tax purposes, a foreign person
50% or more of whose gross income is effectively connected with a United States
trade or business for a specified three-year period or another United States
related person described in Section 1.6049(c)(5) of the Treasury Regulations,
then information reporting will be required unless the broker has in its records
documentary evidence that the beneficial owner otherwise establishes an
exemption. Under recently finalized Treasury Regulations, backup withholding may
apply to any payment that such broker is required to report if such broker has
actual knowledge that the payee is a United States person. Payments to or
through the United States office of a broker are subject to information
reporting and backup withholding through the United States office of a broker
<PAGE>
are subject to information reporting and backup withholding unless the holder or
beneficial owner certifies, under penalties of perjury, that it is a non-United
States person and that it satisfies certain other conditions or otherwise
establishes an exemption from information reporting and backup withholding.
Non-United States persons holding Notes should consult their tax
advisors regarding the application of information reporting and backup
withholding in their particular situations, the availability of an exemption
therefrom, and the procedure for obtaining such an exemption, if available.
Backup withholding is not a separate tax, but is allowed as a refund or credit
against the holder's United States Federal income tax, provided the necessary
information is furnished to the Internal Revenue Service.
Interest on a Note that is beneficially owned by a non-United States
person will be reported annually on IRS Form 1042S, which must be filed with the
Internal Revenue Service and furnished to such beneficial owner.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS
INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A
HOLDER'S PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS
WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE OWNERSHIP AND DISPOSITION OF
THE NOTES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER
TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAWS.
CERTAIN COVENANTS AS TO LIENS
The only financial covenant applicable to the Notes is that described
below. That covenant requires that the Notes be equally and ratably secured in
the circumstances described therein but has no special application merely by
virtue of the occurrence of any transaction or series of transactions resulting
in material changes in the Company's debt-to-equity ratio.
The Company will covenant in the Notes that so long as any of the Notes
remain outstanding, it will not pledge or otherwise subject to any lien any of
its property or assets unless the Notes are secured by such pledge or lien
equally and ratably with any and all other obligations and indebtedness secured
thereby so long as any such other obligations and indebtedness shall be so
secured. Such covenant does not apply to:
(a) the pledge of any assets to secure any financing by the Company of the
exporting of goods to or between, or the marketing thereof in, foreign
countries (other than Canada), in connection with which the Company
reserves the right, in accordance with customary and established
banking practice, to deposit, or otherwise subject to a lien, cash,
securities or receivables, for the purpose of securing banking
accommodations or as to the basis for the issuance of bankers'
acceptances or in aid of other similar borrowing arrangements;
<PAGE>
(b) the pledge of receivables payable in foreign currencies (other than
Canadian dollars) to secure borrowings in foreign countries (other than
Canada);
(c) any deposit of assets of the Company with any surety company or clerk
of any court, or in escrow, as collateral in connection with, or in
lieu of, any bond on appeal by the Company from any judgment or decree
against it, or in connection with other proceedings in actions at law
or in equity by or against the Company;
(d) any lien or charge on any property, tangible or intangible, real or
personal, existing at the time of acquisition of such property
(including acquisition through merger or consolidation) or given to
secure the payment of all or any part of the purchase price thereof or
to secure any indebtedness incurred prior to, at the time of, or within
60 days after, the acquisition thereof for the purpose of financing all
or any part of the purchase price thereof; and
(e) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any lien, charge or
pledge referred to in the foregoing clauses (a) to (d) inclusive of
this paragraph; provided, however, that the amount of any and all
obligations and indebtedness secured thereby shall not exceed the
amount thereof so secured immediately prior to the time of such
extension, renewal or replacement and that such extension, renewal or
replacement shall be limited to all or a part of the property which
secured the charge or lien so extended, renewed or replaced (plus
improvements on such property). (Section 12.01 of the Indenture.)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 66-2/3% in aggregate
principal amount of the Notes at the time outstanding under the Indenture, to
modify the Indenture or any supplemental indenture or the rights of the holders
of the Notes; provided that no such modification shall (i) change the fixed
maturity of any such Note, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, without the consent of
the holder of each such Note so affected or (ii) reduce the aforesaid percentage
of Notes of any series outstanding under the Indenture, the consent of the
holders of which is required for any such modification, without the consent of
the holders of all Notes then outstanding under the Indenture. (Section 10.02 of
the Indenture.)
EVENTS OF DEFAULT
An Event of Default with respect to the Notes is defined in the
Indenture as being: (a) default in payment of any principal of, or premium, if
any, on, the Notes; (b) default for 30 days in payment of any interest on any of
the Notes; (c) default for 30 days after notice in performance of any other
covenant in the Indenture; or (d) certain events of bankruptcy, insolvency or
reorganization. (Section 6.01 of the Indenture.)
In case an Event of Default shall occur and be continuing with respect
to the Notes, the Trustee or the holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may declare the principal amount
of the Notes to be due and payable. Any Event of Default with respect to the
<PAGE>
Notes may be waived by the holders of a majority in aggregate principal amount
of the outstanding Notes except in a case of failure to pay principal of or
interest on such Notes for which payment had not been subsequently made.
(Section 6.06 of the Indenture). The Company is required to file with the
Trustee annually a certificate as to the absence of certain defaults under the
terms of the Indenture. (Section 11.04 of the Indenture.)
Subject to the provisions of the Indenture relating to the duties of
the Trustee in case an Event of Default shall occur and be continuing, the
Trustee shall be under no obligation to exercise any of its rights or powers
under the Indenture at the request, order or direction of any of the
Noteholders, unless such Noteholders shall have offered to the Trustee
reasonable indemnity or security. (Sections 7.01 and 7.02) of the Indenture.)
Subject to such provisions for the indemnification of the Trustee and
to certain other limitations, the holders of a majority in principal amount of
the Notes at the time outstanding shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee. (Section
6.06 of the Indenture.)
CONCERNING THE TRUSTEE
The Chase Manhattan Bank is the Trustee under the Indenture. The Chase
Manhattan Bank acts as issuing and paying agent for the Company's commercial
paper program, makes loans to, acts as trustee and performs certain other
services for, the Company and certain of its affiliates in the normal course of
its business. As trustee of various trusts, it has purchased securities of the
Company and certain of its affiliates.
CONCERNING THE PAYING AGENTS
The Company shall maintain one or more Paying Agents for the payment of
the principal of, premium, if any, and interest, if any, on, the Notes. (Section
4.02 of the Indenture.) The Company has initially appointed The Chase Manhattan
Bank as the Company's Paying Agent for the Notes.
PLAN OF DISTRIBUTION
Under the terms of the Selling Agent Agreement dated as of March ,
1998, the Notes are offered on a continuing basis by the Company through ABN
AMRO Incorporated, A.G. Edwards & Sons, Inc., Edward Jones & Co., L.P., Fidelity
Capital Markets, a division of National Financial Corporation, Prudential
Securities Incorporated and Salomon Brothers Inc, who have agreed to use their
reasonable best efforts to solicit purchases of the Notes. The Company may
appoint additional Agents to solicit sales of the Notes; provided, however, that
any such solicitation and sale of the Notes shall be on the same terms and
conditions to which the Agents have agreed. The Company will pay the Agents a
gross selling Concession to be divided among themselves as they shall agree. The
Concession will be payable to the Purchasing Agent in the form of a discount
<PAGE>
ranging from .20% to 2.50% of the non-discounted price for each Note sold. The
Company will have the sole right to accept offers to purchase Notes and may
reject any proposed purchase of Notes in whole or in part. Each Agent will have
the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes in whole or in part. The Company reserves the right to
withdraw, cancel or modify the offer without notice.
Following the solicitation of orders, the Agents, severally and not
jointly, may purchase Notes from the Company through ABN AMRO Incorporated as
principal for its own account. Unless otherwise set forth in the applicable
Pricing Supplement, such Notes will be resold to one or more investors and other
purchasers at a fixed public offering price not to exceed, as expressed as a
percentage of the principal face amount of a Note, an amount equal to the net
proceeds to the Company on the sale of such Note, plus the allowable Concession.
The actual price paid by investors shall be determined by prevailing market
prices at the time of purchase and 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. In addition, the Agents may offer the Notes
they have purchased as principal to other dealers. The Agents may sell Notes to
any dealer at a discount and, unless otherwise specified in the applicable
Pricing Supplement, such discount allowed to any dealer will not, during the
distribution of the Notes, be in excess of the discount to be received by such
Agent from the Company. After the initial public offering of Notes to be resold
by an Agent to investors and other purchasers, the public offering price (in the
case of Notes to be resold at a fixed public offering price), Concession and
discount may be changed.
Each Agent may be deemed to be an "underwriter" within the meaning of
the Securities Act. The Company has agreed to indemnify the Agents against
certain liabilities, including liabilities under the Securities Act.
The Notes may be offered for sale in the United States and in those
jurisdictions where it is legal to make such offers. Only offers and sales of
the Notes in the United States, as part of the initial distribution thereof or
in connection with resales thereof under circumstances where the Prospectus and
the accompanying Pricing Supplement must be delivered, are made pursuant to the
Registration Statement of which the Prospectus, as supplemented by any Pricing
Supplement, is a part.
Each Agent has represented and agreed that it will comply with all
applicable laws and regulations in force in any jurisdiction in which it
purchases, offers or sells the Notes or possesses or distributes this Prospectus
or the accompanying Pricing Supplement and will obtain any consent, approval
or permission required by it for the purchase, offer or sale by it of the Notes
under the laws and regulations in force in any jurisdiction to which it is
subject or in which it makes such purchases, offers or sales and neither the
Company nor any other Agent shall have responsibility therefor.
Each Agent, severally and not jointly, represents and agrees that:
(i) it has not offered or sold and will not offer or sell any Notes to
persons in the United Kingdom prior to the expiry of the period of six months
from the issue date of the Notes except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
<PAGE>
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995;
(ii) it has only issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with the issue of
the Notes to a person who is a kind described in Article 11(3) of the Financial
Services Act of 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a
person to whom such document may otherwise lawfully be issued or passed on; and
(iii) it has complied and will comply with all applicable provisions of
the Financial Service Act 1986 with respect to anything done by it in relation
to any Notes in, from or otherwise involving the United Kingdom.
Purchasers of the Notes may be required to pay stamp taxes and other
charges in accordance with the laws and practices of the country of purchase in
addition to the Issue Price set forth in any Pricing Supplement hereto.
No Note will have an established trading market when issued. The
Company does not intend to apply for the listing of the Notes on any securities
exchange in the United States, but has been advised by the Agents that the
Agents intend to make a market in the Notes as permitted by applicable laws and
regulations. The Agents are not obligated to do so, however, and the Agents may
discontinue making a market at any time without notice. No assurance can be
given as to the liquidity of any trading market for any Notes. All secondary
trading in the Notes will settle in immediately available funds. See
"Description of Notes - Global Clearance and Settlement Procedures."
Application may be made to list Notes on the Luxembourg Stock Exchange
and on such other or additional stock exchanges on which the Company and the
Purchasing Agent may agree with respect to an issue. If such Notes are listed on
a stock exchange, it will be specified in the applicable Pricing Supplement.
In connection with an offering of the Notes, the rules of the
Commission permit the Purchasing Agent to engage in certain transactions that
stabilize the price of the Notes. Such transactions may consist of bids or
purchases for the purpose of pegging, fixing or maintaining the price of the
Notes. If the Purchasing Agent creates a short position in the Notes in
connection with an offering of the Notes (i.e., if it sells a larger principal
amount of the Notes than is set forth on the cover page of the applicable
Pricing Supplement), the Purchasing Agent may reduce that short position by
purchasing Notes in the open market. In general, purchases of a security for the
purpose of stabilization or to reduce a syndicate short position could cause the
price of the security to be higher than it might otherwise be in the absence of
such purchases. The Purchasing Agent makes no representation or prediction as to
the direction or magnitude of any effect that the transactions described above
may have on the price of the Notes. In addition, the Purchasing Agent makes no
representation that, once commenced, such transactions will not be discontinued
without notice.
<PAGE>
--------------
In the ordinary course of their respective businesses, affiliates of
the Agents have engaged, and will in the future engage, in commercial banking
and investment banking transactions with the Company and certain of its
affiliates.
<PAGE>
LEGAL OPINIONS
The validity of the Notes offered hereby will be passed upon for the
Company by Martin I. Darvick, Esq., Assistant General Counsel of the Company,
and for the Agents by Davis Polk & Wardwell. Mr. Darvick owns shares and holds
options to purchase shares of General Motors Corporation $1-2/3 par value common
stock. Davis Polk & Wardwell acts as counsel to the Executive Compensation
Committee of the Board of Directors of General Motors Corporation and has acted
as counsel to the Company and certain of its affiliates in various matters.
EXPERTS
The consolidated financial statements incorporated in this Prospectus
by reference from the Company's Annual Report on Form 10-K have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
<PAGE>
GMAC
FINANCIAL SERVICES
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses to be incurred in
connection with the offering described in the Registration Statement:
Securities and Exchange Commission Registration Fee.. $292,488
Fees and Expenses of Trustee......................... 5,000
Printing Registration Statement, Prospectus
and Other Documents.............................. 40,000
Underwriter's Counsel Fees........................... 15,000
Accountants' Fees ................................... 15,000
Rating Agencies' Fees ............................... 100,000
Miscellaneous Expenses............................... 32,512
--------
Total............................................ $500,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware Corporation Law, the Company is empowered
to indemnify its directors and officers in the circumstances therein provided.
The Company's Certificate of Incorporation, as amended, provides that no
director shall be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174,
or any successor provision thereto, of the Delaware Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
Under Article VI of its By-Laws, the Company shall indemnify and advance
expenses to every director and officer (and to such person's heirs, executors,
administrators or other legal representatives) in the manner and to the full
extent permitted by applicable law as it presently exists, or may hereafter be
amended, against any and all amounts (including judgments, fines, payments in
settlement, attorneys' fees and other expenses) reasonably incurred by or on
behalf of such person in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), in which such director or officer was or is made
or is threatened to be made a party or is otherwise involved by reason of the
fact that such person is or was a director or officer of the Company, or is or
was serving at the request of the Company as a director, officer, employee,
fiduciary or member of any other corporation, partnership, joint venture, trust,
organization or other enterprise. The Company shall not be required to indemnify
<PAGE>
a person in connection with a proceeding initiated by such person if the
proceeding was not authorized by the Board of Directors of the Company. The
Company shall pay the expenses of directors and officers incurred in defending
any proceeding in advance of its final disposition ("advancement of expenses");
provided, however, that the payment of expenses incurred by a director or
officer in advance of the final disposition of the proceeding shall be made only
upon receipt of an undertaking by the director or officer to repay all amounts
advanced if it should be ultimately determined that the director or officer is
not entitled to be indemnified under Article VI of the By-Laws or otherwise. If
a claim for indemnification or advancement of expenses by an officer or director
under Article VI of the By-Laws is not paid in full within ninety days after a
written claim therefor has been received by the Company, the claimant may file
suit to recover the unpaid amount of such claim, and if successful in whole or
in part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Company shall have the burden of proving that the claimant
was not entitled to the requested indemnification or advancement of expenses
under applicable law. The rights conferred on any person by Article VI of the
By-Laws shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Company's Certificate of
Incorporation or By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise. The Company's obligation, if any, to indemnify any
person who was or is serving at its request as a director, officer or employee
of another corporation, partnership, joint venture, trust, organization or other
enterprise shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint venture, trust,
organization or other enterprise.
As a subsidiary of General Motors Corporation, the Company is insured
against liabilities which it may incur by reason of the foregoing provisions of
the Delaware General Corporation Law and directors and officers of the Company
are insured against some liabilities which might arise out of their employment
and not be subject to indemnification under said General Corporation Law.
Pursuant to resolutions adopted by the Board of Directors of General Motors
Corporation, that company to the fullest extent permissible under law will
indemnify, and has purchased insurance on behalf of, directors or officers of
the Company, or any of them, who incur or are threatened with personal
liability, including expenses, under the Employee Retirement Income Security Act
of 1974 or any amendatory or comparable legislation or regulation thereunder.
ITEM 16. EXHIBITS.
1 Form of Selling Agent Agreement.
*4 Indenture, dated as of September 24, 1996, between the Company
and The Chase Manhattan Bank, Trustee; and First Supplemental
Indenture thereto dated January 1, 1998.
4(a)(1) First Supplemental Indenture, dated as of January 1, 1998,
between the Company and The Chase Manhattan Bank, Trustee
incorporated by reference to Registration Statement No.
333-12023.
*4(a)(2) Form of SmartNotes(sm) in global form included in Exhibit 4.
<PAGE>
5 Opinion and Consent of Martin I. Darvick, Esq.,
Assistant General Counsel of the Company.
8 Opinion and consent of tax counsel.
12 Calculation of Ratio of Earnings to Fixed Charges.
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Counsel included in Exhibit 5.
25 Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of The Chase
Manhattan Bank.
99(a) Underwriter representations of compliance with Rule 15c2-8
under the Securities Exchange Act of 1934, as amended.
99(b) Form of Pricing Supplement included in Exhibit 1.
------------------------
*INCORPORATED BY REFERENCE FROM REGISTRATION STATEMENT NO.
333-12023 DATED SEPTEMBER 19, 1996.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
<PAGE>
filed by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(3) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(4) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby further undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors and officers of the Company pursuant
to the provisions discussed in Item 15 above, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is, therefor,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director or officer of the Company in the successful defense of any action,
suit or proceeding) is asserted by such director or officer in connection with
the securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, General Motors Acceptance Corporation, certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
Form S-3 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Detroit,
and State of Michigan, on the 18th day of March, 1998.
GENERAL MOTORS ACCEPTANCE CORPORATION
/s/ J. Michael Losh
---------------------------------------
(J. Michael Losh, Chairman of the Board)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on March 18, 1998 by the following
persons in the capacities indicated.
SIGNATURE TITLE
--------- -----
/s/ J. Michael Losh Chairman of the Board
- ------------------------- and Director
(J. Michael Losh)
/s/ John D. Finnegan President, Chief Executive Officer
- ------------------------- and Director
(John D. Finnegan)
/s/ William F. Muir Executive Vice President and
- ------------------------- Chief Financial Officer
(William F. Muir)
/s/ Gerald E. Gross Comptroller (Chief Accounting Officer)
- -------------------------
(Gerald E. Gross)
/s/ John G. Blahnik Director
- -------------------------
(John G. Blahnik)
<PAGE>
/s/ Richard J. S. Clout Executive Vice President and Director
- -------------------------
(Richard J. S. Clout)
/s/ Eric A. Feldstein Director
- -------------------------
(Eric A. Feldstein)
/s/ John E. Gibson Executive Vice President and Director
- -------------------------
(John E. Gibson)
/s/ Harry J. Pearce Director
- -------------------------
(Harry J. Pearce)
/s/ W. Allen Reed Director
- -------------------------
(W. Allen Reed)
/s/ John F. Smith, Jr. Director
- -------------------------
(John F. Smith, Jr.)
/s/ Ronald L. Zarrella Director
- -------------------------
(Ronald L. Zarrella)
<PAGE>
EXHIBIT INDEX
EXHIBIT
- ------- PAGE NO.
--------
1 Form of Selling Agent Agreement.................
*4 Indenture, dated as of September 24, 1996,
between the Company and The Chase Manhattan
Bank, Trustee; and First Supplemental
Indenture thereto dated January 1, 1998.........
4(a)(1) First Supplemental Indenture, dated as of January 1, 1998,
between the Company and The Chase Manhattan Bank, Trustee
incorporated by reference to Registration Statement No.
333-12023.
*4(a)(2) Form of SmartNotes(sm) in global form
included in Exhibit 4...........................
5 Opinion and Consent of Martin I. Darvick, Esq.,
Assistant General Counsel of the Company........
8 Opinion and Consent of Tax Counsel..............
12 Calculation of Ratio of Earnings to Fixed
Charges.........................................
23(a) Consent of Deloitte & Touche LLP. ..............
23(b) Consent of Counsel included in Exhibit 5........
25 Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank.........
99(a) Underwriter representations of compliance
with Rule 15c2-8 under the Securities Exchange
Act of 1934, as amended.........................
99(b) Form of Pricing Supplement
included in Exhibit 1...........................
----------------------
*INCORPORATED BY REFERENCE FROM REGISTRATION STATEMENT NO.
333-12023 DATED SEPTEMBER 19, 1996.
EXHIBIT 1
GENERAL MOTORS ACCEPTANCE CORPORATION
$1,000,000,000
SMARTNOTES(SM)
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
March , 1998
ABN AMRO Incorporated
208 South LaSalle Street
Chicago, IL 60604-1003
A.G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, MO 63103
Edward Jones & Co., L.P.
12555 Manchester
Des Peres, MO 63131
Fidelity Capital Markets
A division of National Financial Services Corporation
World Trade Center
164 Northern Avenue, ZT3
Boston, MA 02210
Prudential Securities Incorporated
One New York Plaza
15th Floor
New York, NY 10292-2015
Smith Barney Inc.
Seven World Trade Center
New York, NY 10048
- ------------------
(SM)Service Mark of General Motors Acceptance Corporation
<PAGE>
Dear Sirs:
General Motors Acceptance Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell up to $1,000,000,000 aggregate principal
amount of its SmartNotes(SM) Due from Nine Months to Thirty Years from Date of
Issue (the "Notes") to be issued pursuant to the provisions of an Indenture
dated as of September 24, 1996, as supplemented from time to time, between the
Company and The Chase Manhattan Bank, as Trustee (the "Indenture"). The terms of
the Notes are described in the Prospectus referred to below.
Subject to the terms and conditions contained in this Selling Agent
Agreement (the "Agreement"), the Company hereby (1) appoints you as agent of the
Company ("Agent") for the purpose of soliciting purchases of the Notes from the
Company and you hereby agree to use your reasonable best efforts to solicit
offers to purchase Notes upon terms acceptable to the Company at such times and
in such amounts as the Company shall from time to time specify and in accordance
with the terms hereof, and, after consultation with ABN AMRO Incorporated (the
"Purchasing Agent"), the Company reserves the right to enter into agreements
substantially identical hereto with other agents and (2) agrees that whenever
the Company determines to sell Notes pursuant to this Agreement, such Notes
shall be sold pursuant to a Terms Agreement relating to such sale in accordance
with the provisions of Section V hereof between the Company and the Purchasing
Agent with the Purchasing Agent purchasing such Notes as principal for resale to
others.
I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement No. 333- relating to the Notes and the
offering thereof, from time to time, in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"). Such registration
statement has been declared effective by the Commission, and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Such registration statement and the prospectus filed pursuant
to Rule 424 under the Securities Act, including all documents incorporated
therein by reference, as from time to time amended or supplemented, including
any Pricing Supplement, are referred to herein as the "Registration Statement"
and the "Prospectus," respectively.
II.
Your obligations hereunder are subject to the following conditions,
each of which shall be met on such date as you and the Company shall
subsequently fix for the commencement of your obligations hereunder (the
"Commencement Date"):
(a)(i) No litigation or proceeding shall be threatened or pending to
restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes and (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
<PAGE>
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 Martin I.
Darvick, Esquire, Assistant General Counsel ("Counsel") of the Company, dated
such Commencement Date, to the effect that (i) the Company has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the State of Delaware and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification; (ii) the Indenture
has been duly authorized, executed and delivered by the Company and is a legal,
valid, binding and enforceable agreement of the Company and has been duly
qualified under the Trust Indenture Act; (iii) the issuance and sale of the
Notes has been duly authorized and the Notes, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the purchasers, will be entitled to the benefits of the Indenture and will be
legal, valid, binding and enforceable obligations of the Company; (iv) this
Agreement has been duly authorized, executed and delivered by the Company and is
a legal, valid, binding and enforceable obligation of the Company, provided that
Counsel's opinions in (ii), (iii) and (iv) hereof are subject as to enforcement
to the laws of bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles and that rights to indemnity hereunder may be limited by applicable
law in the United States; (v) no authorization, consent or approval of, or
registration or filing with, any governmental or public body or regulatory
authority in the United States is required on the part of the Company for the
issuance of the Notes in accordance with the Indenture or the sale of the Notes
in accordance with this Agreement other than the registration of the Notes under
the Securities Act, qualification of the Indenture under the Trust Indenture Act
and compliance with the securities or Blue Sky laws of various jurisdictions;
(vi) the execution and delivery of the Indenture, the issuance of the Notes in
accordance with the Indenture and the sale of the Notes pursuant to this
Agreement do not and will not contravene any provision of applicable law or
result in any violation by the Company of any of the terms or provisions of the
Restated Organization Certificate or By-Laws of the Company, or any indenture,
mortgage or other agreement or instrument known to Counsel by which the Company
is bound; (vii) the statements in the Prospectus under "Description of Notes"
and "Plan of Distribution," insofar as such statements constitute a summary of
the documents or proceedings referred to therein, fairly present the information
called for with respect to such documents and proceedings; and (viii) Counsel
(1) is of the opinion that each document, if any, filed pursuant to the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") (except as to
financial statements contained therein, as to which Counsel need not express any
opinion) and incorporated by reference in the Prospectus complied when so filed
as to form in all material respects with the Exchange Act and the rules and
regulations thereunder, (2) is of the opinion that the Registration Statement
<PAGE>
and Prospectus, as amended or supplemented, if applicable (except as to
financial statements contained therein, as to which Counsel need not express any
opinion), comply as to form in all material respects with the Securities Act and
the rules and regulations thereunder and (3) to the best of Counsel's knowledge
(except for the financial statements contained therein, as to which Counsel need
not express any belief) the Registration Statement and the Prospectus, as
amended or supplemented, filed with the Commission pursuant to the Securities
Act together with the information incorporated therein, do not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, provided that with
respect to (viii) above, Counsel may state that his opinion is based upon the
participation by one or more attorneys, who are members of his staff and report
to him and who participated in the preparation of the Registration Statement and
the Prospectus and the information incorporated therein by reference and review
and discussion of the contents thereof and upon his general review and
discussion of the answers made and information furnished therein with such
attorneys, certain officers of the Company and its auditors, but is without
independent check or verification except as stated therein.
(c) You shall have received on the Commencement Date a letter dated
the Commencement Date from Deloitte & Touche LLP, independent auditors,
containing statements and information of the type ordinarily included in
auditors' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus relating to the
Notes.
(d) You shall have received a favorable opinion of Davis Polk &
Wardwell, counsel for the Agents, dated such Commencement Date, to the effect
set forth in clauses (ii), (iii), (iv), (vii) and (viii)(2) and (3) of Section
II(b).
The obligations of the Purchasing Agent to purchase Notes as principal,
both under this Agreement and under any Terms Agreement (as defined in Section V
hereof) are subject to the conditions that (i) no litigation or proceeding shall
be threatened or pending to restrain or enjoin the issuance or delivery of the
Notes, or which in any way questions or affects the validity of the Notes, (ii)
no stop order suspending the effectiveness of the Registration Statement shall
be in effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission and (iii) there shall have been no material adverse
change not in the ordinary course of business in the consolidated financial
condition of the Company and its subsidiaries, taken as a whole, from that set
forth in the Registration Statement and the Prospectus, each of which conditions
shall be met on the corresponding Settlement Date. Further, if specifically
called for by any written agreement by the Purchasing Agent to purchase Notes as
principal, the Purchasing Agent's obligations hereunder and under such
agreement, shall be subject to such of the additional conditions set forth in
clauses (a), as it relates to the executive officer's certificate, and clauses
(b), (c) and (d) above, as agreed to by the parties, each of which such agreed
conditions shall be met on the corresponding Settlement Date.
<PAGE>
III.
In further consideration of your agreements herein contained, the
Company covenants as follows:
(a) To furnish to you, without charge, a copy of (i) the Indenture,
(ii) the resolutions of the Board of Directors (or Executive Committee) of the
Company authorizing the issuance and sale of the Notes, certified by the
Secretary or Assistant Secretary of the Company as having been duly adopted,
(iii) the Registration Statement including exhibits and materials incorporated
by reference therein and (iv) as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus (other than amendments or supplements to change interest rates),
to furnish you a copy of each such proposed amendment or supplement.
(c) To furnish you copies of each amendment to the Registration
Statement and of each amendment and supplement to the Prospectus in such
quantities as you may from time to time reasonably request; and if at any time
when the delivery of a Prospectus shall be required by law in connection with
sales of any of the Notes, either (i) any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact, or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading or (ii) for any other reason it shall be
necessary to amend or supplement the latest Prospectus, as then amended or
supplemented, or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or the
Exchange Act, the Company will (A) notify you to suspend the solicitation of
offers to purchase Notes and if notified by the Company, you shall forthwith
suspend such solicitation and cease using the Prospectus as then amended or
supplemented and (B) promptly prepare and file with the Commission such document
incorporated by reference in the Prospectus or an amendment or supplement to the
Registration Statement or the Prospectus which will correct such statement or
omission or effect such compliance and will provide to you without charge a
reasonable number of copies thereof, which you shall use thereafter.
(d) To endeavor to qualify such Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all reasonable expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with the
determination of the eligibility of such Notes for investment under the laws of
such jurisdictions as you may designate, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation to do
business, or to file a general consent to service of process, in any
jurisdiction.
<PAGE>
(e) The Company will make generally available to its security
holders and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering twelve month periods beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the Securities Act)
of the Registration Statement with respect to each sale of Notes. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(f)(i) To use its reasonable efforts, in cooperation with the
Purchasing Agent, to cause such Notes as the Company and the Purchasing Agent
agree to be accepted for listing on any stock exchange (each, a "Stock
Exchange"), in each case as the Company and the Purchasing Agent shall deem to
be appropriate. In connection with any such agreement to qualify Notes for
listing on a Stock Exchange, the Company shall use its reasonable efforts to
obtain such listing promptly and shall furnish any and all documents,
instruments, information and undertakings that may be necessary or advisable in
order to obtain and maintain the listing.
(ii)So long as any Note remains outstanding and listed on a
Stock Exchange, if either (A) there is a significant change affecting any matter
described in the Prospectus the inclusion of which was required by applicable
law, the listing rules and regulations of such Stock Exchange the "Listing
Rules") or by such Stock Exchange, or (B) a significant new matter arises the
inclusion of information with respect to which would have been so required if it
had arisen when the Prospectus was prepared, to provide to the Purchasing Agent
information about the change or matter, publish such supplementary Prospectus as
may be required by such Stock Exchange and otherwise comply with applicable law
and the Listing Rules in that regard.
(iii)To use reasonable efforts to comply with any undertakings
given by it from time to time to any Stock Exchange on which any Notes are
listed.
IV.
(a) You propose to solicit purchases of the Notes upon the terms
and conditions set forth herein and in the Prospectus and upon the terms
communicated to you from time to time by the Company. For the purpose of such
solicitation you will use the Prospectus as then amended or supplemented which
has been most recently distributed to you by the Company, and you will solicit
purchases only as permitted or contemplated thereby and herein and will solicit
purchases of the Notes only as permitted by the Securities Act and the
applicable securities laws or regulations of any jurisdiction. The Company
reserves the right, in its sole discretion, to suspend solicitation of purchases
of the Notes commencing at any time for any period of time or permanently. Upon
receipt of instructions (which may be given orally) from the Company, you will
forthwith suspend solicitation of purchases until such time as the Company has
advised you that such solicitation may be resumed.
<PAGE>
You are authorized to solicit orders for the Notes only in
denominations of $1,000 or more (in multiples of $1,000). You are not authorized
to appoint subagents or to engage the service of any other broker or dealer in
connection with the offer or sale of the Notes without the consent of the
Company. Unless otherwise instructed by the Company, the Purchasing Agent shall
communicate to the Company, orally or in writing, each offer to purchase Notes.
The Company shall have the sole right to accept offers to purchase Notes offered
through you and may reject any proposed purchase of Notes as a whole or in part.
You shall have the right, in your discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part, and any such rejection shall
not be deemed a breach of your agreements contained herein. The Company agrees
to pay the Purchasing Agent, as consideration for soliciting the sale of the
Notes pursuant to a Terms Agreement, a concession in the form of a discount
equal to the percentages of the initial offering price of each Note sold as set
forth in Exhibit A hereto (the "Concession"). The Purchasing Agent and the other
Agents will share the above-mentioned Concession in such proportions as they may
agree.
Unless otherwise authorized by the Company, all Notes shall be sold to
the public at a purchase price not to exceed 100% of the principal amount
thereof, plus accrued interest, if any, with the exception of Notes that bear a
zero interest rate and are issued at a substantial discount from the principal
amount payable at the Maturity Date (a "Zero-Coupon Note"). Such Zero-Coupon
Notes shall be sold to the public at a purchase price no greater than an amount,
expressed as a percentage of the principal face amount of such Notes, equal to
the net proceeds to the Company on the sale of such Notes, plus the Concession,
plus accrued interest, if any. The actual purchase price paid by investors for
any Note shall be determined by prevailing market prices at the time of
purchase. Such purchase price shall be set forth in the confirmation statement
of the Selling Group Member responsible for such sale, and delivered to the
purchaser along with a copy of the Prospectus (if not previously delivered) and
Pricing Supplement.
(b) Procedural details relating to the issue and delivery of, and
the solicitation of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit B (the "Procedures"), as
amended from time to time. The provisions of the Procedures shall apply to all
transactions contemplated hereunder other than those made pursuant to a Terms
Agreement. You and the Company each agree to perform the respective duties and
obligations specifically provided to be performed by each in the Procedures as
amended from time to time. The Procedures may only be amended by written
agreement of the Company and you.
(c) You are aware that other than registering the Notes under
the Securities Act of 1933, no action has been or will be taken by the Company
that would permit the offer or sale of the Notes or possession or distribution
of the Prospectus or any other offering material relating to the Notes in any
jurisdiction where action for that purpose is required. Accordingly, you agree
<PAGE>
that you will observe all applicable laws and regulations in each jurisdiction
in or from which you may directly or indirectly acquire, offer, sell or deliver
Notes or have in your possession or distribute the Prospectus or any other
offering material relating to the Notes and you will obtain any consent,
approval or permission required by you for the purchase, offer or sale by you of
Notes under the laws and regulations in force in any such jurisdiction to which
you are subject or in which you make such purchase, offer or sale. Neither the
Company nor any other Agent shall have any responsibility for determining what
compliance is necessary by you or for your obtaining such consents, approvals or
permissions. You further agree that you will take no action that will impose any
obligations on the Company or the other Agents. Subject as provided above, you
shall, unless prohibited by applicable law, furnish to each person to whom you
offer, sell or deliver Notes a copy of the Prospectus (as then amended or
supplemented) or (unless delivery of the Prospectus is required by applicable
law) inform each such person that a copy thereof (as then amended or
supplemented) will be made available upon request. You are not authorized to
give any information or to make any representation not contained in the
Prospectus or the documents incorporated by reference or specifically referred
to therein in connection with the offer and sale of the Notes.
(d) You represent and agree that (i) you have not offered or sold
and will not offer or sell any Notes to persons in the United Kingdom prior to
the expiry of the period of six months from the issue date of the Notes except
to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995; (ii) you have only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by you in connection with the issue of the Notes to a person who is of
a kind described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on; and (iii) you have complied and will
comply with all applicable provisions of the Financial Service Act 1986 with
respect to anything done by you in relation to any Notes in, from or otherwise
involving the United Kingdom.
V.
Each sale of Notes shall be made in accordance with the terms of this
Agreement and a separate agreement to be entered into which will provide for the
sale of such Notes to, and the purchase and reoffering thereof, by the
Purchasing Agent as principal. Each such separate agreement (which may be an
oral agreement and confirmed in writing as described below between the
Purchasing Agent and the Company) is herein referred to as a "Terms Agreement."
A Terms Agreement may also specify certain provisions relating to the reoffering
of such Notes by the Purchasing Agent. The Purchasing Agent's agreement to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations, warranties and agreements of the Company
herein contained and shall be subject to the terms and conditions herein set
<PAGE>
forth. Each Terms Agreement, whether oral (and confirmed in writing which may be
by facsimile transmission) or in writing, shall describe the Notes to be
purchased pursuant thereto by the Purchasing Agent as principal, and may
specify, among other things, the principal amount of Notes to be purchased, the
interest rate or formula and maturity date or dates of such Notes, the interest
payment dates, if any, the price to be paid to the Company for such Notes, the
initial public offering price at which the Notes are proposed to be reoffered,
and the time and place of delivery of and payment for such Notes (the
"Settlement Date"), whether the Notes provide for a Survivor's Option or for
optional redemption by the Company and on what terms and conditions, and any
other relevant terms. In connection with the resale of the Notes purchased,
without the consent of the Company you are not authorized to appoint subagents
or to engage the service of any other broker or dealer, nor may you reallow any
portion of the discount paid to you by the Company. Terms Agreements, each of
which shall be substantially in the form of Exhibit C hereto, or as otherwise
agreed to between the Company and the Purchasing Agent, may take the form of an
exchange of any standard form of written telecommunication between the
Purchasing Agent and the Company.
VI.
The Company represents and warrants to the Agents that as of each date
on which the Company accepts an offer to purchase Notes (including any purchase
by the Purchasing Agent as principal, pursuant to a Terms Agreement or
otherwise), as of each date the Company issues and sells Notes and as of each
date the Registration Statement or the Prospectus is amended or supplemented:
(i) each document, if any, filed, or to be filed, pursuant to the Exchange Act
and incorporated by reference in the Prospectus complied when so filed, or will
comply, in all material respects with such Act and the rules and regulations
thereunder; (ii) the Registration Statement (including the documents
incorporated by reference therein), filed with the Commission pursuant to the
Securities Act relating to the Notes, when it became effective, did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (iii) each Prospectus, if any, filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with such Act
and the applicable rules and regulations thereunder; (iv) the Registration
Statement and each Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations thereunder; and (v) the Registration Statement
and each Prospectus relating to the Notes do not and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The above representations and warranties shall not apply to any
statements or omissions made in the Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by you expressly
for use therein. Each acceptance by the Company of an offer for the purchase of
Notes and each issuance of Notes shall be deemed an affirmation by the Company
<PAGE>
that the foregoing representations and warranties are true and correct at the
time, as the case may be, of such acceptance or of such issuance, in each case
as though expressly made at such time. The representations, warranties and
covenants of the Company shall survive the execution and delivery of this
Agreement and the issuance and sale of the Notes.
Each time the Registration Statement shall be amended by the filing of
a post-effective amendment with the Commission, or the filing by the Company of
a Form 10-K or Form 10-Q pursuant to Section 13 of the Exchange Act, or, if so
agreed in connection with a particular transaction, the Company shall furnish
the Agents with (1) a written opinion, dated the date of such amendment, filing
(in the case of a Form 10-Q, if requested in writing), or as otherwise agreed,
of counsel to the Company, in substantially the form previously delivered under
Section II(b), but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented at such date; (2) a
letter, dated the date of such amendment, filing, or as otherwise agreed, of
Deloitte & Touche LLP, independent auditors, in substantially the form
previously delivered under Section II(c), but modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended or supplemented at
such date; and (3) a certificate, dated the date of such amendment, filing, or
as otherwise agreed and signed by an executive officer of the Company, in
substantially the form previously delivered under Section II(a), but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended or supplemented at such date.
VII.
The Company agrees to indemnify and hold harmless you, each person, if
any, who controls (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) you and each of your and such person's
officers and directors against any and all losses, liabilities, costs or claims
(or actions in respect thereof) to which any of them may become subject
(including all reasonable costs of investigating, disputing or defending any
such claim or action), insofar as such losses, liabilities, costs or claims (or
actions in respect thereof) arise out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any Prospectus, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading provided: (i) that the Company shall not be liable for any such loss,
liability, cost, action or claim arising from any statements or omissions made
in reliance on and in conformity with written information provided by you to the
Company expressly for use in the Registration Statement or Prospectus or any
amendment or supplement thereto; and (ii) that the Company shall not be liable
to you or any person controlling you with respect to the Prospectus to the
extent any such loss, liability, cost, action or claim to you or such
controlling person results from the fact that you sold Notes to a person to whom
there was not sent or given, at or prior to the earlier of either the mailing or
delivery of the written confirmation of such sale or the delivery of such Notes
to such person, a copy of the Prospectus as then amended or supplemented, if the
Company has previously furnished copies thereof to you.
<PAGE>
You agree to indemnify and hold harmless the Company, each person, if
any, who controls (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act), the Company, and the Company's and such
person's officers and directors from and against any and all losses,
liabilities, costs or claims (or actions in respect thereof) to which any of
them may become subject (including all reasonable costs of investigating,
disputing or defending any such claim or action), insofar as such losses,
liabilities, costs or claims (or actions in respect thereof) arise out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or Prospectus, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, in each
case only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the section of the Prospectus
entitled "Plan of Distribution" or any amendment or supplement thereto in
reliance on and in conformity with written information furnished to the Company
by you expressly for use therein.
You agree to indemnify and hold harmless the Company, the other Agents,
each director and officer of the Company, or of any of the other Agents, and
each person, if any, who controls (within the meaning of Section 15 of the
Securities Act) the Company, or any of the other Agents, against any and all
losses, claims, damages, liabilities, expenses, actions and demands to which
they or any of them may become subject (including all reasonable costs of
investigating, disputing or defending any such claim, action or demand) under
the law of any jurisdiction or which may be made against them arising out of, or
in connection with the breach of such Agent of any of the terms, conditions,
agreements and representations of Section IV of the Agreement.
If any claim, demand, action or proceeding (including any governmental
investigation) shall be brought or alleged against an indemnified party in
respect of which indemnity is to be sought against an indemnifying party
pursuant to the preceding paragraphs, the indemnified party shall promptly
notify the indemnifying party in writing, and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnified party may designate in such proceeding and shall pay the reasonable
fees and expenses of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the indemnifying party has failed within a reasonable time to retain
counsel reasonably satisfactory to such indemnified party or (iii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is agreed that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate law firm (in addition to local counsel where necessary) for all such
indemnified parties. Such firm shall be designated in writing by the indemnified
party. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
<PAGE>
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
The indemnity agreements contained in this Section VII and the
representations and warranties of the Company and you in this Agreement, shall
remain operative and in full force and effect regardless of: (i) any termination
of this Agreement; (ii) any investigation made by an indemnified party or on
such party's behalf or any person controlling an indemnified party or by or on
behalf of the indemnifying party, its directors or officers or any person
controlling the indemnifying party; and (iii) acceptance of and payment for any
of the Notes.
VIII.
Except as provided in Section V hereof, in soliciting purchases of
Notes from the Company, you are acting solely as agent for the Company, and not
as principal. You will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
accepted by the Company, but you shall not have any liability to the Company in
the event such purchase is not consummated for any reason, other than to repay
to the Company any commission with respect thereto. Except pursuant to a Terms
Agreement, under no circumstances shall you be obligated to purchase any Notes
for your own account.
IX.
This Agreement shall be terminated at any time by either party hereto
upon the giving of five business days written notice of such termination to the
other party hereto. In the event of any such termination, neither party shall
have any liability to the other party hereto, except for obligations hereunder
which expressly survive the termination of this Agreement and except that, if at
the time of termination an offer for the purchase of Notes shall have been
accepted by the Company but the time of delivery to the purchaser or his agent
of the Note or Notes relating thereto shall not yet have occurred, the Company
shall have the obligations provided herein with respect to such Note or Notes.
Any Terms Agreement shall be subject to termination in your absolute
discretion on the terms set forth or incorporated by reference therein. The
termination of this Agreement shall not require termination of any agreement by
the Purchasing Agent to purchase Notes as principal, and the termination of any
such agreement shall not require termination of this Agreement.
<PAGE>
If this Agreement is terminated, the last sentence of the second
paragraph of Section IV(a), Section III(c), (d) and (e), Section VII, and the
first paragraph of Section XIV shall survive; provided that if at the time of
termination of this Agreement an offer to purchase Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such Notes
has not occurred, the provisions of Section III(a) and (b), Section IV(b) and
Section V shall also survive until time of delivery.
X.
Except as otherwise specifically provided herein, all statements,
requests, notices and advices hereunder shall be in writing, or by telephone if
promptly confirmed in writing, and if to you shall be sufficient in all respects
if delivered in person or sent by telex, facsimile transmission (confirmed in
writing), or registered mail to you at your address, telex or telecopier number
set forth below by your signature and if to the Company shall be sufficient in
all respects if delivered or sent by telex, telecopier or registered mail to the
Company at 3044 West Grand Boulevard, Detroit, Michigan 48202, telex number
425543 or telecopier number 313-974-1244, 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.
<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) the
reasonable fees and disbursements of Davis Polk & Wardwell, counsel for the
Agents (including "Blue Sky" fees and disbursements; (vi) if the Company lists
Notes on a securities exchange, the costs and fees of such listing; and (vii)
any fees charged by rating agencies for the rating of the Notes.
This Agreement may be executed by each of the parties hereto in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Company and you.
Very truly yours,
GENERAL MOTORS ACCEPTANCE CORPORATION
By:___________________________________
Title:________________________________
<PAGE>
Confirmed and accepted
as of the date first above
written:
ABN AMRO INCORPORATED
By:______________________________
Title:___________________________
ABN AMRO Incorporated
208 South LaSalle Street
Chicago, Illinois 60604-1003
Attention:
Telefax:
A. G. EDWARDS & SONS, INC.
By:______________________________
Title:___________________________
A. G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, Missouri 63103
Attention:
Telefax:
<PAGE>
EDWARD JONES & CO., L.P.
By:______________________________
Title:___________________________
Edward Jones & Co., L.P.
12555 Manchester
Des Peres, Missouri 63131
Attention:
Telefax:
FIDELITY CAPITAL MARKETS
a division of National Financial Services Corporation
By:______________________________
Title:___________________________
Fidelity Capital Markets
a division of National Financial Services Corporation
World Trade Center
164 Northern Avenue, ZT3
Boston, Massachusetts 02210
Attention:
Telefax:
<PAGE>
PRUDENTIAL SECURITIES INCORPORATED
By:______________________________
Title:___________________________
Prudential Securities Incorporated
One New York Plaza
15th Floor
New York, New York 10292-2015
Attention:
Telefax:
SMITH BARNEY INC.
By:______________________________
Title:___________________________
Smith Barney Inc.
Seven World Trade Center
New York, New York 10048
Attention:
Telefax:
<PAGE>
EXHIBIT A
SMARTNOTES(SM)
GMAC
DEALER AGENT PROGRAM
--------------------
The following Concessions are payable as a percentage of the non-discounted
Price to Public of each Note sold through the Purchasing Agent.
9 months to less than 23 months.................. .200%
23 months to less than 35 months................. .400%
35 months to less than 47 months................. .625%
47 months to less than 59 months................. .750%
59 months to less than 71 months................. 1.000%
71 months to less than 83 months................. 1.100%
83 months to less than 95 months................. 1.200%
95 months to less than 107 months................ 1.300%
107 months to less than 119 months............... 1.400%
119 months to less than 131 months............... 1.500%
131 months to less than 143 months............... 1.600%
143 months to less than 179 months............... 1.750%
179 months to less than 239 months............... 2.000%
239 months to 360 months......................... 2.500%
<PAGE>
EXHIBIT B
GENERAL MOTORS ACCEPTANCE CORPORATION
$1,000,000,000
SMARTNOTES(SM)
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
SmartNotes(SM), Due from Nine Months to Thirty Years from Date of Issue are
offered on a continuing basis by General Motors Acceptance Corporation. The
Notes will be offered by ABN AMRO Incorporated (the "Purchasing Agent"), A.G.
Edwards & Sons, Inc., Edward Jones & Co., L.P., Fidelity Capital Markets, a
division of National Financial Services Corporation, Prudential Securities
Incorporated and Salomon Brothers Inc (collectively, the "Agents") pursuant to a
Selling Agent Agreement among the Company and the Agents dated as of the date
hereof (the "Selling Agreement") and one or more terms agreements substantially
in the form attached to the Selling Agreement as Exhibit C (each a "Terms
Agreement"). The Notes are being resold by the Purchasing Agent (and by any
Agent that purchases them from the Purchasing Agent) to (i) customers of the
Agents or (ii) selected broker-dealers (the "Selling Group") for distribution to
their customers pursuant to a Master Selected Dealers Agreement (a "Dealers
Agreement") attached hereto as Schedule E. The Agents have agreed to use their
reasonable best efforts to solicit purchases of the Notes. The Notes will be
senior debt and have been registered with the Securities and Exchange Commission
(the "Commission"). The Chase Manhattan Bank is the trustee (the "Trustee")
under an Indenture dated as of September 24, 1996, as amended from time to time,
between the Company and the Trustee (the "Indenture") covering the Notes.
Pursuant to the terms of the Indenture, The Chase Manhattan Bank also will serve
as authenticating agent, issuing agent and paying agent.
Each tranche of Notes will be issued in book-entry form ("Notes") and
represented by one or more fully registered global notes without coupons (each,
a "Global Note") held by the Trustee, as agent for the Depository Trust
Corporation ("DTC") and recorded in the book-entry system maintained by DTC.
Each Global Note will have the annual interest rate, maturity and other terms
set forth in the relevant Pricing Supplement (as defined in the Selling
Agreement). Owners of beneficial interests in a Global Note will be entitled to
physical delivery of Notes issued in certificated form equal in principal amount
to their respective beneficial interests only upon certain limited circumstances
described in the Indenture.
<PAGE>
Administrative procedures and specific terms of the offering are explained
below. Administrative responsibilities will be handled for the Company by its
Borrowings Department; accountable document control and record-keeping
responsibilities will be performed by its Comptroller's Department. The Company
will advise the Agents and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agents and the Trustee are to
communicate regarding offers to purchase Notes and the details of their
delivery.
Notes will be issued in accordance with the administrative procedures set forth
in herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the Indenture, the Selling Agent
Agreements or the Prospectus and the Pricing Supplement (together, the
"Prospectus"), the relevant provisions of the Notes, the Indenture, the Selling
Agent Agreements and the Prospectus shall control. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Selling Agent Agreement, the Prospectus in the form most recently filed with the
Commission pursuant to Rule 424 of the Securities Act, or in the Indenture.
Administrative Procedures for Notes
-----------------------------------
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated September 24, 1996, and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated March 10, 1989,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). The procedures set forth below may be modified in
compliance with DTC's then-applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the "Maturity Date")
not less than nine months after the date of delivery by the
Company of such Note. Notes will mature on any date selected
by the initial purchaser and agreed to by the Company.
"Maturity" when used with respect to any Note, means the
date on which the outstanding principal amount of such Note
becomes due and payable in full in accordance with its
terms, whether at its Maturity Date or by declaration of
acceleration, call for redemption, repayment or otherwise.
Issuance: All Notes having the same terms will be represented
initially by a single Global Note. Each Global Note will be
dated and issued as of the date of its authentication by the
Trustee.
All Discount Notes which have the same terms (collectively,
the "Zero-Coupon Terms") will be represented initially by a
single Global Certificate in fully registered form without
coupons.
<PAGE>
Each Note will bear an original issue date (the "Original
Issue Date"). The Original Issue Date shall remain the same
for all Notes subsequently issued upon transfer, exchange or
substitution of an original Note regardless of their dates
of authentication.
Identification
Numbers: The Company has received from the CUSIP
Service Bureau (the "CUSIP Service Bureau") of Standard &
Poor's Corporation ("Standard & Poor's") one series of CUSIP
numbers consisting of approximately 900 CUSIP numbers for
future assignment to Global Notes. The Company will provide
DTC and the Trustee with a list of such CUSIP numbers. The
Company will assign CUSIP numbers as described below under
Settlement Procedure "B". DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the Company
has assigned to Global Notes. The Company will reserve
additional CUSIP numbers when necessary for assignment to
Global Notes and will provide the Trustee and DTC with the
list of additional CUSIP numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes
will be issued only in fully registered form without
coupons. Each Global Note will be registered in the name of
Cede & Co., as nominee for DTC, on the Note Register
maintained under the Indenture by the Trustee. The
beneficial owner of a Note (or one or more indirect
participants in DTC designated by such owner) will designate
one or more participants in DTC (with respect to such Note,
the "Participants") to act as agent or agents for such owner
in connection with the book-entry system maintained by DTC,
and DTC will record in book-entry form, in accordance with
instructions provided by such Participants, a credit balance
with respect to such beneficial owner of such Note in the
account of such Participants. The ownership interest of such
beneficial owner in such Note will be recorded through the
records of such Participants or through the separate records
of such Participants and one or more indirect participants
in DTC.
Transfers: Transfers of interests in a Global Note will be
accomplished by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial
transferors and transferees of such interests.
Exchanges: The Trustee, at the Company's request, may deliver to
DTC and the CUSIP Service Bureau at any time a written
notice of consolidation specifying (a) the CUSIP numbers of
two or more Global Notes outstanding on such date that
<PAGE>
represent Notes having the same terms or (except that Issue
Dates need not be the same) and for which interest, if any,
has been paid to the same date and which otherwise
constitute Notes of the same series and tenor under the
Indenture, (b) a date, occurring at least 30 days after such
written notice is delivered and at least 30 days before the
next Interest Payment Date, if any, for the related Notes,
on which such Global Notes shall be exchanged for a single
replacement Global Note; and (c) a new CUSIP number,
obtained from the Company, to be assigned to such
replacement Global Note. Upon receipt of such a notice, DTC
will send to its participants (including the Issuing Agent)
and the Trustee a written reorganization notice to the
effect that such exchange will occur on such date. Prior to
the specified exchange date, the Trustee will deliver to the
CUSIP Service Bureau written notice setting forth such
exchange date and the new CUSIP number and stating that, as
of such exchange date, the CUSIP numbers of the Global Notes
to be exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Global Notes
for a single Global Note bearing the new CUSIP number and
the CUSIP numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. Notwithstanding
the foregoing, if the Global Notes to be exchanged exceed
$200,000,000 in aggregate principal or face amount, one
replacement Global Note will be authenticated and issued to
represent each $200,000,000 of principal or face amount of
the exchanged Global Notes and an additional Global Note
will be authenticated and issued to represent any remaining
principal amount of such Global Notes (See "Denominations"
below).
Denominations: Notes will be issued in denominations of $1,000 or
more (in multiples of $1,000). Global Notes will be
denominated in principal or face amounts not in excess of
$200,000,000. If one or more Notes having an aggregate
principal or face amount in excess of $200,000,000 would,
but for the preceding sentence, be represented by a single
Global Note, then one Global Note will be issued to
represent each $200,000,000 principal or face amount of such
Note or Notes and an additional Global Note will be issued
to represent any remaining principal amount of such Note or
Notes. In such case, each of the Global Notes representing
such Note or Notes shall be assigned the same CUSIP number.
Issue Price: Unless otherwise specified in an applicable Pricing
Supplement, each Note will be issued at the percentage of
principal amount specified in the Prospectus relating to
such Note.
<PAGE>
Interest: General: Each Note will bear interest at a fixed rate,
which may be zero during all or any part of the term in the
case of certain Notes issued at a price representing a
substantial discount from the principal amount payable at
Maturity. Interest on each Note will accrue from the Issue
Date of such Note for the first interest period and from the
most recent Interest Payment Date to which interest has been
paid for all subsequent interest periods. Except as set
forth hereafter, each payment of interest on a Note will
include interest accrued to but excluding, as the case may
be, the Interest Payment Date or the date of Maturity (other
than a Maturity Date of a Note occurring on the 31st day of
a month in which case such payment of interest will include
interest accrued to but excluding the 30th day of such
month). Any payment of principal, premium or interest
required to be made on a day that is not a Business Day (as
defined below) may be made on the next succeeding Business
Day and no interest shall accrue as a result of any such
delayed payment.
Each pending deposit message described under Settlement
Procedure "C" below will be routed to Standard & Poor's
Corporation, which will use the message to include certain
information regarding the related Notes in the appropriate
daily bond report published by Standard & Poor's
Corporation.
Each Note will bear interest from and including its Issue
Date at the rate per annum set forth thereon and in the
applicable Pricing Supplement until the principal amount
thereof is paid, or made available for payment, in full.
Unless otherwise specified in the applicable Pricing
Supplement, interest on each Note (other than a Zero-Coupon
Note) will be payable either monthly, quarterly, semi-
annually or annually on each Interest Payment Date and at
Maturity (or on the date of redemption or repayment if a
Note is repurchased by the Company prior to maturity
pursuant to mandatory or optional redemption provisions or
the Survivor's Option). Interest will be payable to the
person in whose name a Note is registered at the close of
business on the Regular Record Date next preceding each
Interest Payment Date; provided, however, interest
payable at Maturity, on a date of redemption or in
connection with the exercise of the Survivor's Option will
be payable to the person to whom principal shall be payable.
Any payment of principal, and premium,
if any, or interest required to be made on a Note on a
day which is not a Business Day need not be made on such
day, but may be made on the next succeeding Business Day
with the same force and effect as if made on such day, and
no additional interest shall accrue as a result of such
delayed payment. Unless otherwise specified in the
applicable Pricing Supplement, any interest on the Notes
<PAGE>
will be computed on the basis of a 360-day year of twelve
30-day months. The interest rates the Company will agree to
pay on newly-issued Notes are subject to change without
notice by the Company from time to time, but no such change
will affect any Notes already issued or as to which an offer
to purchase has been accepted by the Company.
The Interest Payment Dates for a Note that provides for
monthly interest payments shall be the fifteenth day of each
calendar month (or the next Business Day), commencing in the
calendar month that next succeeds the month in which the
Note is issued. In the case of a Note that provides for
quarterly interest payments, the Interest Payment Dates
shall be the fifteenth day of each sixth month (or the next
Business Day), commencing in the third succeeding calendar
month following the month in which the Note is issued. In
the case of a Note that provides for semi-annual interest
payments, the Interest Payment dates shall be the fifteenth
day of each sixth month (or the next Business Day),
commencing in the sixth succeeding calendar month following
the month in which the Note is issued. In the case of a Note
that provides for annual interest payments, the Interest
Payment Date shall be the fifteenth day of every twelfth
month (or the next Business Day), commencing in the twelfth
succeeding calendar month following the month in which the
Note is issued. The Regular Record Date with respect to any
Interest Payment Date shall be the first day of the calendar
month in which such Interest Payment Date occurred, except
that the Regular Record Date with respect to the final
Interest Payment Date shall be the final Interest Payment
Date.
Each payment of interest on a Note shall include accrued
interest from and including the Issue Date or from and
including the last day in respect of which interest has been
paid (or duly provided for), as the case may be, to, but
excluding, the Interest Payment Date or Maturity Date, as
the case may be.
Calculation
of Interest: Interest on the Notes (including interest for partial
periods) will be calculated on the basis of a 360-day year
of twelve 30-day months. (Examples of interest calculations
are as follows: October 1, 1998 to April 1, 1999 equals 6
months and 0 days, or 180 days; the interest paid equals
180/360 times the annual rate of interest times the
principal amount of the Note. The period from December 3,
1998 to April 1, 1999 equals 4 months and 28 days, or 148
days; the interest payable equals 148/360 times the annual
rate of interest times the principal amount of the Note.)
<PAGE>
Business Day: "Business Day" means, unless otherwise specified in
the applicable Pricing Supplement, any day, other than a
Saturday or Sunday, that meets the following applicable
requirement: such day is not a day on which banking
institutions are authorized or required by law, regulation
or executive order to be closed in the City of New York.
Payments of
Principal and
Interest: Payments of Principal and Interest: Promptly after each
Regular Record Date, the Trustee will deliver to the Company
and DTC a written notice specifying by CUSIP number the
amount of interest, if any, to be paid on each Global Note
on the following Interest Payment Date (other than an
Interest Payment Date coinciding with a Maturity Date) and
the total of such amounts. DTC will confirm the amount
payable on each Global Note on such Interest Payment Date by
reference to the daily bond reports published by Standard &
Poor's. On such Interest Payment Date, the Company will pay
to the Trustee, and the Trustee in turn will pay to DTC,
such total amount of interest due (other than on the
Maturity Date), at the times and in the manner set forth
below under "Manner of Payment." If any Interest Payment
Date for any Note is not a Business Day, the payment due on
such day shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for the period
from and after such Interest Payment Date.
Payments on the Maturity Date: On or about the first
Business Day of each month, the Trustee will deliver to
the Company and DTC a written list of principal, premium,
if any, and interest to be paid on each Global Note
representing Notes maturing or subject to redemption
(pursuant to a sinking fund or otherwise) or repayment
("Maturity") in the following month. The Trustee, the
Company and DTC will confirm the amounts of such principal,
premium, if any, and interest payments with respect to each
Global Note on or about the fifth Business Day preceding the
Maturity Date of such Global Note. On the Maturity Date, the
Company will pay to the Trustee, and the Trustee in turn
will pay to DTC, the principal amount of such Global Note,
together with interest and premium, if any, due on such
Maturity Date, at the times and in the manner set forth
below under "Manner of Payment." If the Maturity Date of
any Global Note is not a Business Day, the payment due on
such day shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for the period
from and after such Maturity Date. Promptly after payment
to DTC of the principal and interest due on the Maturity
Date of such Global Note and all other Notes represented by
<PAGE>
such Global Note, the Trustee will cancel and destroy such
Global Note in accordance with the Indenture and so advise
the Company.
Manner of Payment: The total amount of any principal,
premium, if any, and interest due on Global Notes on any
Interest Payment Date or at Maturity shall be paid by the
Company to the Trustee in immediately available funds on
such date. The Company will make such payment on such Global
Notes by instructing the Trustee to withdraw funds from an
account maintained by the Company with The Chase Manhattan
Bank, by wire transfer to The Chase Manhattan Bank or as
otherwise agreed with the Trustee. The Company will confirm
such instructions in writing to the Trustee. Prior to 10:00
a.m., New York City time, on the date of Maturity or as soon
as possible thereafter, the Trustee will make payment to DTC
in accordance with existing arrangements between DTC and the
Trustee, in funds available for immediate use by DTC, each
payment of interest, principal and premium, if any, due on a
Global Note on such date. On each Interest Payment Date
(other than on the Maturity Date) the Trustee will pay DTC
such interest payments in same-day funds in accordance with
existing arrangements between the Trustee and DTC.
Thereafter, on each such date, DTC will pay, in accordance
with its SDFS operating procedures then in effect, such
amounts in funds available for immediate use to the
respective Participants with payments in amounts
proportionate to their respective holdings in principal
amount of beneficial interest in such Global Note as are
recorded in the book-entry system maintained by DTC. Neither
the Company nor the Trustee shall have any direct
responsibility or liability for the payment by DTC of the
principal of, or premium, if any, or interest on, the Notes
to such Participants.
Withholding Taxes: The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Note will be determined and withheld by the
Participant, indirect participant in DTC or other person
responsible for forwarding payments and materials directly
to the beneficial owner of such Note.
Procedure for
Rate Setting
and Posting: The Company and the Agents will discuss, from time to time,
the aggregate principal amounts of, the Maturities, the
Issue Price and the interest rates to be borne by Notes
that may be sold as a result of the solicitation of orders
by the Agents. If the Company decides to set interest rates
borne by any Notes in respect of which the Agents are to
solicit orders (the setting of such interest rates to be
referred to herein as "Posting") or if the Company decides
<PAGE>
to change interest rates previously posted by it, it will
promptly advise the Agents of the prices and interest rates
to be posted.
The Company will assign a separate CUSIP number for
each tranche of Notes to be posted, and will so advise and
notify the Trustee and Purchasing Agent of said assignment
by telephone and/or by telecopier or other form of
electronic transmission. The Purchasing Agent will, in turn,
include the assigned CUSIP number on all Posting notices
communicated to the Agents and Selling Group members.
Offering of Notes: In the event that there is a Posting, the
Purchasing Agent will communicate to each of the Agents and
Selling Group members the aggregate principal amount and
Maturities of, along with the interest rates to be borne by,
each tranche of Note that is the subject of the Posting.
Thereafter, the Purchasing Agent, along with the other
Agents and the Selling Group, will solicit offers to
purchase the Notes accordingly.
Purchase of Notes
by the Purchasing
Agent: The Purchasing Agent will, no later than 4:00
p.m. (New York City time) on the sixth day subsequent to the
day on which such Posting occurs, or if such sixth day is
not a day on which commercial banks in New York City are not
required or authorized to be in operation (not a "Business
Day"), on the preceding Business Day, or on such other
Business Day and time as shall be mutually agreed upon by
the Company and the Agents (any such day, a "Trade Day"),
(i) complete, execute and deliver to the Company a Terms
Agreement that sets forth, among other things, the amount of
each tranche that the Purchasing Agent is offering to
purchase or (ii) inform the Company that none of the Notes
of a particular tranche will be purchased by the Purchasing
Agent.
Acceptance
and Rejection
of Orders: Unless otherwise agreed by the Company and
the Agents, the Company has the sole right to accept orders
to purchase Notes and may reject any such order in whole or
in part. Unless otherwise instructed by the Company, the
Purchasing Agent will promptly advise the Company by
telephone of all offers to purchase Notes received by it,
other than those rejected by it in whole or in part in the
reasonable exercise of its discretion. No order for less
than $1,000 principal amount of Notes will be accepted.
<PAGE>
Upon receipt of a completed and executed Terms
Agreement from the Purchasing Agent, the Company will (i)
promptly execute and return such Terms Agreement to the
Purchasing Agent or (ii) inform the Purchasing Agent that
its offer to purchase the Notes of a particular tranche has
been rejected, in whole or in part. The Purchasing Agent
will thereafter promptly inform the other Agents and
participating Selling Group members of the action taken by
the Company.
Preparation
of Pricing
Supplement: If any offer to purchase a Note is accepted by or on
behalf of the Company, the Company will provide a Pricing
Supplement (substantially in the form attached to the
Selling Agent Agreement as Exhibit D) reflecting the terms
of such Note and will have filed such Pricing Supplement
with the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act and will supply a
copy thereof (or additional copies if requested) to the
Purchasing Agent and one copy to the Trustee. The Purchasing
Agent will cause a Prospectus and Pricing Supplement to be
delivered to each of the other Agents and Selling Group
members that purchased such Notes, and each of these, in
turn, will pursuant to the terms of the Selling Agent
Agreement and the Master Selected Dealer Agreement, cause to
be delivered a copy of the applicable Pricing Supplement to
each purchaser of Notes from such Agent or Selling Group
member.
In each instance that a Pricing Supplement is prepared, the
Agents will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements and the
Prospectuses to which they are attached (other than those
retained for files) will be destroyed.
Delivery of
Confirmation and
Prospectus to
Purchaser by
Presenting
Agent: Subject to "Suspension of Solicitation; Amendment or
Supplement" below, the Agents will deliver a Prospectus and
Pricing Supplement as herein described with respect to each
Note sold by it.
For each offer to purchase a Note solicited by an Agent and
accepted by or on behalf of the Company, the Purchasing
Agent will issue a confirmation to the purchaser, with a
copy to the Company, setting forth the terms of such Note
and other applicable details described above and delivery
and payment instructions. In addition, the Purchasing Agent
<PAGE>
will deliver to such purchaser the Prospectus (including the
Pricing Supplement) in relation to such Note prior to or
together with the earlier of any written offer of such Note,
delivery of the confirmation of sale or delivery of the
Note.
Settlement: The receipt of immediately available funds by the
Company in payment for Notes and the authentication and
issuance of the Global Note representing such Notes shall
constitute "Settlement" with respect to such Note. All
orders accepted by the Company will be settled within one to
three Business Days pursuant to the timetable for Settlement
set forth below, unless the Company and the purchaser agree
to Settlement on a later date, and shall be specified upon
acceptance of such offer; provided, however, in all cases
the Company will notify the Trustee on the date issuance
instructions are given.
Settlement
Procedures: In the event of a purchase of Notes by any Agent, as
principal, appropriate Settlement details, if different from
those set forth below, will be set forth in the applicable
Terms Agreement to be entered into between such Agent and
the Company pursuant to the Agreement. Settlement Procedures
with regard to each Note sold by an Agent, as agent for the
Company, shall be as follows:
A. After the acceptance of an offer by the Company with
respect to a Note, the Purchasing Agent will
communicate the following details of the terms of such
offer (the "Note Sale Information") to the Company by
telephone confirmed in writing or by facsimile
transmission or other acceptable written means:
1. Principal amount of the purchase;
2. Interest Rate;
3. Interest Payment Dates;
4. Settlement Date;
5. Maturity Date;
6. Purchase Price;
7. Purchasing Agent's commission determined
pursuant to Section IV(a) of the Selling Agent
Agreement;
<PAGE>
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the Company, such of
the following as are applicable:
(i) The date on and after which such
Note may be redeemed (the "Redemption
Commencement Date"),
(ii) Initial redemption price(% of par),
and
(iii) Amount (% of par) that the initial
redemption price shall decline (but
not below par) on each anniversary
of the Redemption Commencement Date;
11. Whether the Note has the Survivor's Option;
12. If a Discount Note, the total amount of
original issue discount, the yield to maturity
and the initial accrual period of original
issue discount;
13. DTC Participant Number of the institution
through which the customer will hold the
beneficial interest in the Global Note; and
14. Such other terms as are necessary to complete
the applicable form of Note.
B. The Company will confirm the previously assigned CUSIP
number to the Global Note representing such Note and
then advise the Trustee and the Purchasing Agent by
telephone (confirmed in writing at any time on the same
date) or by telecopier or other form of electronic
transmission of the information received in accordance
with Settlement Procedure "A" above, the assigned CUSIP
number and the name of the Purchasing Agent. Each such
communication by the Company will be deemed to
constitute a representation and warranty by the Company
to the Trustee and the Agents that (i) such Note is
then, and at the time of issuance and sale thereof will
be, duly authorized for issuance and sale by the
Company; (ii) such Note, and the Global Note
<PAGE>
representing such Note, will conform with the terms of
the Indenture; and (iii) upon authentication and
delivery of the Global Note representing such Note, the
aggregate principal amount of all Notes issued under
the Indenture will not exceed the aggregate principal
amount of Notes authorized for issuance at such time by
the Company.
C. The Trustee will communicate to DTC and the Purchasing
Agent through DTC's Participant Terminal System, a
pending deposit message specifying the following
Settlement information:
1. The information received in accordance
with Settlement Procedure "A".
2. The numbers of the participant accounts
maintained by DTC on behalf of the Trustee and
the Purchasing Agent.
3. The initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related DTC record date (which
term means the Regular Record Date), and if
then calculated, the amount of interest payable
on such Initial Interest Payment Date (which
amount shall have been confirmed by the
Trustee).
4. The CUSIP number of the Global Note
representing such Notes.
5. The frequency of interest.
6. Whether such Global Note represents any other
Notes issued or to be issued (to the extent
then known).
D. DTC will credit such Note to the participant account of
the Trustee maintained by DTC.
E. The Trustee will complete and deliver a Global Note
representing such Note in a form that has been approved
by the Company, the Agents and the Trustee.
F. The Trustee will authenticate the Global Note
representing such Note and maintain possession of such
Global Note.
<PAGE>
G. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to the Trustee's participant
account and credit such Note to the participant account
of the Agent maintained by DTC and (ii) debit the
settlement account of the Agent and credit the
settlement account of the Trustee maintained by DTC, in
an amount equal to the price of such Note less the
Purchasing Agent's commission. The entry of such a
deliver order shall be deemed to constitute a
representation and warranty by the Trustee to DTC that
(a) the Global Note representing such Note has been
issued and authenticated and (b) the Trustee is holding
such Global Note pursuant to the Certificate Agreement.
H. The Purchasing Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC to (i) debit such Note to the Purchasing Agent's
participant account and credit such Note to the
participant accounts of the Participants to whom such
Note is to be credited maintained by DTC and (ii) debit
the settlement accounts of such Participants and credit
the settlement account of the Purchasing Agent
maintained by DTC, in an amount equal to the price of
the Note so credited to their accounts.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the Settlement Date.
J. The Trustee will credit to an account of the Company
maintained at The Chase Manhattan Bank funds available
for immediate use in an amount equal to the amount
credited to the Trustee's DTC participant account in
accordance with Settlement Procedure "G".
K. The Trustee will send a copy of the Global Note
representing such Note by first-class mail to the
Company.
L. The Purchasing Agent will confirm the purchase of each
Note to the purchaser thereof either by transmitting to
the Participant to whose account such Note has been
credited a confirmation order through DTC's Participant
Terminal System or by mailing a written confirmation to
such purchaser. In all cases the Prospectus as most
recently amended or supplemented must accompany or
precede such confirmation.
<PAGE>
M. Each Business Day, the Trustee will send to the Company
a statement setting forth the principal amount of Notes
outstanding as of that date under the Indenture and
setting forth the CUSIP number(s) assigned to, and a
brief description of, any orders which the Company has
advised the Trustee but which have not yet been
settled.
Settlement
Procedures
Timetable: In the event of a purchase of Notes by the Purchasing Agent,
as principal, appropriate Settlement details, if different
from those set forth below will be set forth in the
applicable Terms Agreement to be entered into between the
Purchasing Agent and the Company pursuant to the Selling
Agent Agreement.
For orders of Notes solicited by an Agent, as agent, and
accepted by the Company, Settlement Procedures "A" through
"M" shall be completed as soon as possible but not later
than the respective times (New York City time) set forth
below:
Settlement
Procedure Time
--------- ----
A 4:00 p.m. on the Trade Day.
B 5:00 p.m. on the Trade Day.
C 2:00 p.m. on the Business Day
before the Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 a.m. on the Settlement Date.
G-H 2:00 p.m. on the Settlement Date.
I 4:45 p.m. on the Settlement Date.
J-L 5:00 p.m. on the Settlement Date.
M Weekly or at the request of the Company.
NOTE: The Prospectus as most recently amended or
supplemented must accompany or precede any written
confirmation given to the customer (Settlement Procedure
"L"). Settlement Procedure "I" is subject to extension in
accordance with any extension Fedwire closing deadlines and
in the other events specified in the SDFS operating
procedures in effect on the Settlement Date.
<PAGE>
If Settlement of a Note is rescheduled or cancelled, the
Trustee will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect by no
later than 2:00 p.m., New York City time, on the Business
Day immediately preceding the scheduled Settlement Date.
Failure to
Settle: If the Trustee fails to enter an SDFS deliver order with
respect to a Note pursuant to Settlement Procedure "G", the
Trustee may deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a withdrawal message
instructing DTC to debit such Note to the participant
account of the Trustee maintained at DTC. DTC will process
the withdrawal message, provided that such participant
account contains Notes having the same terms and having a
principal amount that is at least equal to the principal
amount of such Note to be debited. If withdrawal messages
are processed with respect to all the Notes issued or to be
issued represented by a Global Note, the Trustee will cancel
such Global Note in accordance with the Indenture, make
appropriate entries in its records and so advise the
Company. The CUSIP number assigned to such Global Note
shall, in accordance with CUSIP Service Bureau procedures,
be cancelled and not immediately reassigned. If withdrawal
messages are processed with respect to one or more, but not
all, of the Notes represented by a Global Note, the Trustee
will exchange such Global Note for two Global Notes, one of
which shall represent such Notes and shall be cancelled
immediately after issuance, and the other of which shall
represent the remaining Notes previously represented by the
surrendered Global Note and shall bear the CUSIP number of
the surrendered Global Note. If the purchase price for any
Note is not timely paid to the Participants with respect to
such Note by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on behalf
of such purchaser), such Participants and, in turn, the
related Agent may enter SDFS deliver orders through DTC's
participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "G" and "H", respectively.
Thereafter, the Trustee will deliver the withdrawal message
and take the related actions described in the preceding
paragraph. If such failure shall have occurred for any
reason other than default by the Agent in the performance of
its obligations hereunder or under the Agency Agreement, the
Company will reimburse the Agent on an equitable basis for
its loss of the use of funds during the period when they
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Note, DTC may take any actions in
accordance with its SDFS operating procedures then in
<PAGE>
effect. In the event of a failure to settle with respect to
one or more, but not all, of Notes that were to have been
represented by a Global Note, the Trustee will provide, in
accordance with Settlement Procedures "D" and "E", for the
authentication and issuance of a Global Note representing
the other Notes to have been represented by such Global Note
and will make appropriate entries in its records.
Procedure for
Rate Changes: Each time a decision has been reached to change rates, the
Company will promptly advise the Agents of the new rates,
who will forthwith suspend solicitation of purchases of
Notes at the prior rates. The Agents may telephone the
Company with recommendations as to the changed interest
rates.
Suspension of
Solicitation
Amendment or
Supplement: Subject to the Company's representations, warranties and
covenants contained in the Selling Agent Agreement, the
Company may instruct the Agents to suspend at any time for
any period of time or permanently, the solicitation of
orders to purchase Notes. Upon receipt of such instructions
(which may be given orally), each Agent will forthwith
suspend solicitation until such time as the Company has
advised it that solicitation of purchases may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and the Trustee whether such orders may be
settled and whether copies of the Prospectus as in effect at
the time of the suspension may be delivered in connection
with the settlement of such orders. The Company will have
the sole responsibility for such decision and for any
arrangements which may be made in the event that the Company
determines that such orders may not be settled or that
copies of such Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will promptly
advise the Agents and furnish the Agents and the Trustee
with the proposed amendment or supplement and with such
certificates and opinions as are required, all to the extent
required by and in accordance with the terms of the Selling
Agent Agreement. Subject to the provisions of the Selling
Agent Agreement, the Company may file with the Commission
any supplement to the Prospectus relating to the Notes. The
Company will provide the Agents and the Trustee with copies
of any such supplement, and confirm to the Agents that such
supplement has been filed with the Commission.
<PAGE>
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the Trustee to
risk or expend its own funds in connection with any payment
to the Company, or the Agents or the purchasers, it being
understood by all parties that payments made by the Trustee
to either the Company or the Agents shall be made only to
the extent that funds are provided to the Trustee for such
purpose.
Advertising
Costs: The Company shall have the sole right to approve the form
and substance of any advertising an Agent may initiate in
connection with such Agent's solicitation to purchase the
Notes. The expense of such advertising will be solely the
responsibility of such Agent, unless otherwise agreed to by
the Company.
<PAGE>
EXHIBIT C
GENERAL MOTORS ACCEPTANCE CORPORATION
SMARTNOTES(SM)
TERMS AGREEMENT
, 199
General Motors Acceptance Corporation
3044 West Grand Boulevard
Detroit, Michigan 48202
Attention: U.S. Borrowings
The undersigned agrees to purchase the following aggregate principal
amount of Notes: $
The terms of such Notes shall be as follows:
CUSIP Number: _______
Interest Rate: %
Maturity Date:
Price to Public:
Agent's Concession: %
Settlement Date, Time
and Place:
Survivor's Option:_________
Interest Payment Dates:
Optional Redemption, if any: ______
Initial Redemption Date: ___________
Redemption Price: Initially __% of Principal Amount and declining by
__% of the Principal Amount on each anniversary of the Initial Redemption Date
until the Redemption Price is 100% of the Principal Amount.
<PAGE>
[Any other terms and conditions agreed
to by such Agent and the Company]
ABN AMRO INCORPORATED
By:_________________________
Title:______________________
ACCEPTED:
GENERAL MOTORS ACCEPTANCE CORPORATION
By:________________________________
Title:_____________________________
<PAGE>
Exhibit D
Form of Pricing Supplement
--------------------------
SMARTNOTE$(SM)
[OBJECT OMITTED]
-------------------------------------------------------------
------------------------------------
Pricing Supplement No. Trade Date:
- ------------------------------
(To Prospectus dated March ___, 1998) Issue Date:
The date of this Pricing Supplement is [date]
- ------------- ---------- ---------- ------------ ------------- -----------
CUSIP Stated
or Interest Maturity Price to Reallowance Payment
Common Code Rate Public (1) Frequency
- ------------- ---------- ---------- ------------ ------------- -----------
- ------------- -----------------------------------------
Subject to Redemption
Survivor's -----------------------------------------
Option Yes/No Date and terms of redemption
- ------------- -----------------------------------------
- -----------------------------
(1) Actual Price to Public may be less, and will be determined by prevailing
market prices at the time of purchase as set forth in the confirmation
statement.
<PAGE>
EXHIBIT E
Form of Master Selected Dealer Agreement
----------------------------------------
[Name of Dealer]
[Dealer's Address]
Dear Selected Dealer:
In connection with public offerings of securities after the date hereof
for which we are acting as manager of an underwriting syndicate or are otherwise
responsible for the distribution of securities to the public by means of an
offering of securities for sale to selected dealers, you may be offered the
right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. Applicability of this Agreement: The terms and conditions of
this Agreement shall be applicable to any public offering of securities
("Securities"), pursuant to a registration statement filed under the Securities
Act of 1933 (the "Securities Act"), or exempt from registration thereunder
(other than a public offering of Securities effected wholly outside the United
States of America), wherein (ABN AMRO Incorporated) (acting for its own account
or for the account of any underwriting or similar group or syndicate) is
responsible for managing or otherwise implementing the sale of the Securities to
selected dealers ("Selected Dealers") and has expressly informed you that such
terms and conditions shall be applicable. Any such offering of Securities to you
as a Selected Dealer is hereinafter called an "Offering". In the case of any
Offering where we are acting for the account of any underwriting or similar
group or syndicate ("Underwriters"), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters, including, in
the case of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases: Any Offering
will be subject to delivery of the Securities and their acceptance by us and any
other Underwriters, may be subject to the approval of all legal matters by
counsel and the satisfaction of other conditions, and may be made on the basis
of reservation of Securities or an allotment against subscription. We will
advise you by telegram, telex or other form of written communication ("Written
Communication", which term, in the case of any Offering described in Section
3(a) or 3(b) hereof, may include a prospectus or offering circular) of the
particular method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date referred to in
Section 3(c) hereof) of any Offering in which you are invited to participate. To
the extent such supplementary terms and conditions are inconsistent with any
<PAGE>
provision herein, such terms and conditions shall supersede any such provision.
Unless otherwise indicated in any such Written Communication, acceptances and
other communications by you with respect to an Offering should be sent to ABN
AMRO Incorporated, 208 South LaSalle Street, Chicago, Illinois 60604-1003
(Telecopy: (312) 553-6329). We reserve the right to reject any acceptance in
whole or in part. Unless notified otherwise by us, Securities purchased by you
shall be paid for on such date as we shall determine, on one day's prior notice
to you, by certified or official bank check, in an amount equal to the Public
Offering Prices (as hereinafter defined) or, if we shall so advise you, at such
Public Offering Price less the Concession (as hereinafter defined), payable in
New York Clearing House funds to the order of ABN AMRO Incorporated, against
delivery of the Securities. If Securities are purchased and paid for at such
Public Offering Price, such Concession will be paid after the termination of the
provisions of Section 3(c) hereof with respect to such Securities.
Notwithstanding the foregoing, unless notified otherwise by us, payment for and
delivery of Securities purchased by you shall be made through the facilities of
The Depository Trust Company, if you are a member, unless you have otherwise
notified us prior to the date specified in a Written Communication to you from
us or, if you are not a member, settlement may be made through a correspondent
who is a member pursuant to instructions which you will send to us prior to such
specified date.
3. Representations, Warranties and Agreements:
(a) Registered Offerings: In the case of any Offering of
Securities that are registered under the Securities Act ("Registered Offering"),
we shall provide you with such number of copies of each preliminary prospectus
and of the final prospectus relating thereto as you may reasonably request for
the purposes contemplated by the Securities Act and the Securities Exchange Act
of 1934 (the "Exchange Act") and the applicable rules and regulations of the
Securities and Exchange Commission thereunder. You represent and warrant that
you are familiar with Rule 15c2-8 under the Exchange Act relating to the
distribution of preliminary and final prospectuses and agree that you will
comply therewith. You agree to make a record of your distribution of each
preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, you will, upon our request, promptly forward copies
thereof to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to a
prospectus or by any Underwriter to give any information or to make any
representation not contained in the prospectus in connection with the sale of
such Securities.
(b) Offerings Pursuant to Offering Circular: In the case
of any Offering of Securities, other than a Registered Offering, which is made
pursuant to an offering circular or other document comparable to a prospectus in
a Registered Offering, we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular relating
<PAGE>
thereto as you may reasonably request. You agree that you will comply with the
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no statements
whatsoever, written or oral, other than the statements in the final offering
circular delivered to you by us. You will not be authorized by the issuer or
other seller of Securities offered pursuant to an offering circular or by any
Underwriter to give any information or to make any representation not contained
in the offering circular in connection with the sale of such Securities.
(c) Offer and Sale to the Public: With respect to any
Offering of Securities, we will inform you by a Written Communication of the
public offering price, the selling Concession, the reallowance (if any) to
dealers and the time when you may commence selling Securities to the public.
After such public offering has commenced, we may change the public offering
price, the selling Concession and the reallowance to dealers. The offering
price, selling Concession and reallowance (if any) to dealers at any time in
effect with respect to an Offering are hereinafter referred to, respectively, as
the "Public Offering Price", the "Concession" and the "Reallowance". With
respect to each Offering of Securities, until the provisions of this Section
3(c) shall be terminated pursuant to Section 4 hereof, you agree to offer
Securities to the public only at the Public Offering Price, except that if a
Reallowance is in effect, a reallowance from the Public Offering Price not in
excess of such Reallowance may be allowed as consideration for services rendered
in distribution to dealers who are actually engaged in the investment banking or
securities business, who execute the written agreement prescribed by section
24(c) of Article III of the Rules of Fair Practice of the National Association
of Securities Dealers, Inc. (the "NASD") and who are either members in good
standing of the NASD or foreign banks, dealers or institutions not eligible for
membership in the NASD who represent to you that they will promptly reoffer such
Securities at the Public Offering Price and will abide by the conditions with
respect to foreign banks, dealers and institutions set forth in Section 3(e)
hereof.
(d) Over-allotment; Stabilization; Unsold Allotments: We
may, with respect to any Offering, be authorized to over-allot in arranging
sales to Selected Dealers, to purchase and sell Securities for long or short
account and to stabilize or maintain the market price of the Securities. You
agree that, upon our request at any time and from time to time prior to the
termination of the provisions of Section 3(c) hereof with respect to any
Offering, you will report to us the amount of Securities purchased by you
pursuant to such Offering which then remain unsold by you and will, upon our
request at any such time, sell to us for our account or the account of one or
more Underwriters such amount of such unsold Securities as we may designate at
the Public Offering Price less an amount to be determined by us not in excess of
the Concession. If, prior to the later of (i) the termination of the provisions
of Section 3(c) hereof with respect to any Offering or (ii) the covering by us
of any short position created by us in connection with such Offering for our
account or the account of one or more Underwriters, we purchase or contract to
purchase for our account or the account of one or more Underwriters in the open
market or otherwise any Securities purchased by you under this Agreement as part
of such Offering, you agree to pay us on demand an amount equal to the
<PAGE>
Concession with respect to such Securities (unless you shall have purchased such
Securities pursuant to Section 2 hereof at the Public Offering Price in which
case we shall not be obligated to pay such Concession to you pursuant to Section
2) plus transfer taxes and broker's commissions or dealer's mark-up, if any,
paid in connection with such purchase or contract to purchase.
(e) NASD: You represent and warrant that you are actually
engaged in the investment banking or securities business and either a member in
good standing of the NASD or, if you are not such a member, you are a foreign
bank, dealer or institution not eligible for membership in the NASD which agrees
to make no sales within the United States, its territories or its possessions or
to persons who are citizens thereof or residents therein, and in making other
sales to comply with the NASD's interpretation with respect to free riding and
withholding. You further represent, by your participation in an Offering, that
you have provided to us all documents and other information required to be filed
with respect to you, any related person or any person associated with you or any
such related person pursuant to the supplementary requirements of the NASD's
interpretation with respect to review of corporate financing as such
requirements relate to such Offering.
You agree that, in connection with any purchase or sale of
the Securities wherein a selling Concession, discount or other allowance is
received or granted, (1) you will comply with the provisions of section 24 of
Article III of the NASD's Rules of Fair Practice and (2) if you are a non-NASD
member broker or dealer in a foreign country, you will also comply (a), as
though you were an NASD member, with the provision of sections 8 and 36 thereof
and (b) with section 25 thereof as that section applies to a non-NASD member
broker or dealer in a foreign country.
You further agree that, in connection with any purchase
of securities from us that is not otherwise covered by the terms of this
Agreement (whether we are acting as manager, as a member of an underwriting
syndicate or a selling group or otherwise), if a selling Concession, discount or
other allowance is granted to you, clauses (1) and (2) of the preceding
paragraph will be applicable.
(f) Relationship among Underwriters and Selected Dealers: We
may buy Securities from or sell Securities to any Underwriter or Selected Dealer
and, without consent, the Underwriters (if any) and the Selected Dealers may
purchase Securities from and sell Securities to each other at the Public
Offering Price less all or any part of the Concession. You are not authorized to
act as agent for us, any Underwriter or the issuer or other seller of any
Securities in offering Securities to the public or otherwise. Neither we nor any
Underwriter shall be under any obligation to you except for obligations assumed
hereby or in any Written Communication from us in connection with any Offering.
Nothing contained herein or in any Written Communication from us shall
constitute the Selected Dealers an association or partners with us or any
Underwriter or with one another. If the Selected Dealers, among themselves or
with the Underwriters, should be deemed to constitute a partnership for Federal
income tax purposes, then you elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986 and
<PAGE>
agree not to take any position inconsistent with that election. You authorize
us, in our discretion, to execute and file on your behalf such evidence of that
election as may be required by the Internal Revenue Service. In connection with
any Offering, you shall be liable for your proportionate amount of any tax,
claim, demand or liability that may be asserted against you alone or against one
or more Selected Dealers participating in such Offering, or against us or the
Underwriters, based upon the claim that the Selected Dealers, or any of them,
constitute an association, an unincorporated business or other entity,
including, in each case, your proportionate amount of any expense incurred in
defending against any such tax, claim, demand or liability.
(g) Blue Sky Laws: Upon application to us, we shall inform
you as to any advice we have received from counsel concerning the jurisdictions
in which Securities have been qualified for sale or are exempt under the
securities or blue sky laws of such jurisdictions, but we do not assume any
obligation or responsibility as to your right to sell Securities in any such
jurisdiction.
(h) Compliance with Law: You agree that in selling
Securities pursuant to any Offering (which agreement shall also be for the
benefit of the issuer or other seller of such Securities) you will comply with
all applicable laws, rules and regulations, including the applicable provisions
of the Securities Act and the Exchange Act, the applicable rules and regulations
of the Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, the applicable rules and regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules
and regulations specified in Section 3(b) hereof.
4. Termination, Supplements and Amendments: This Agreement shall
continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented or
amended by us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to any Offering to
which this Agreement applies after the date of such supplement or amendment.
Each reference to "this Agreement" herein shall, as appropriate, be to this
Agreement as so amended and supplemented. The terms and conditions set forth in
Section 3(c) hereof with regard to any Offering will terminate at the close of
business on the 30th day after the commencement of the public offering of the
Securities to which such Offering relates, but in our discretion may be extended
by us for a further period not exceeding 30 days and in our discretion, whether
or not extended, may be terminated at any earlier time.
5. Successors and Assigns: This Agreement shall be binding on,
and inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
6. Governing Law: This Agreement and the terms and conditions
set forth herein with respect to any Offering together with such supplementary
terms and conditions with respect to such Offering as may be contained in any
Written Communication from us to you in connection therewith shall be governed
by, and construed in accordance with, the laws of the State of Illinois.
<PAGE>
Please confirm by signing and returning to us the enclosed copy of
this Agreement that your subscription to, or your acceptance of any
reservation of, any Securities pursuant to an Offering shall constitute (i)
acceptance of and agreement to the terms and conditions of this Agreement (as
supplemented and amended pursuant to Section 4 hereof) together with and subject
to any supplementary terms and conditions contained in any Written Communication
from us in connection with such Offering, all of which shall constitute a
binding agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you have requested and received from us sufficient copies of
the final prospectus or offering circular, as the case may be, with respect to
such Offering in order to comply with your undertakings in Section 3(a) or 3(b)
hereof.
Very truly yours,
ABN AMRO INCORPORATED
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
CONFIRMED: March , 1998
- ----------------------------------------
(Name of Dealer)
By:
-------------------------------------
Name:
-----------------------------------
(Print name)
Title:
----------------------------------
EXHIBIT 4(a)(1)
FIRST SUPPLEMENTAL INDENTURE, dated as of January 1, 1998, between General
Motors Acceptance Corporation, a corporation duly organized and existing under
the laws of the State of New York (hereafter called the "Company"), General
Motors Acceptance Corporation, a corporation duly organized and existing under
the laws of the State of Delaware, and The Chase Manhattan Bank, a corporation
duly organized and existing under the laws of the State of New York, as Trustee
(hereafter called the "Trustee," which term shall include any successor trustee
appointed pursuant to Article Seven of the Indenture hereafter referred to).
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and delivered the
Indenture, dated as of September 24, 1996, between the Company and the Trustee,
providing for the issuance from time to time of one or more series of securities
evidencing unsecured indebtedness of the Company (hereinafter called the
"Securities"). Terms used in this First Supplemental Indenture which are defined
in the Indenture shall have the meanings assigned to them in the Indenture;
WHEREAS, this First Supplemental Indenture amends the Indenture, pursuant to
Section 10.01 thereof in order to permit the succession of another corporation
to the Company and the assumption by such successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article Eleven
of the Indenture;
WHEREAS, the Company has entered into an Agreement and Plan of Merger with GMAC
Financial Services Corporation, a Delaware corporation, dated January 1, 1998,
with GMAC Financial Services Corporation being the surviving entity of such
merger (the "Merger"); and
WHEREAS, upon consummation of such Merger, the name of GMAC Financial Services
Corporation was changed to General Motors Acceptance Corporation, a Delaware
corporation ("New GMAC"); such name change together with the Merger (the
"Transaction");
WHEREAS, New GMAC is not in default in the performance of any covenant or
condition contained in the Indenture immediately after the Merger;
NOW, THEREFORE, for and in consideration of the premises and the purchase of the
Securities by the holders thereof, the Company and New GMAC covenant and agree,
for the equal and proportionate benefit of the respective holders from time to
time hereafter of the Securities, as follows:
<PAGE>
ARTICLE ONE
New GMAC hereby expressly assumes the due and punctual payment of the principal
of (and premium, if any) and interest on all the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of the Indenture to be performed by the Company.
All references in the Indenture to "Company" shall mean New GMAC until a
successor corporation shall have become such pursuant to the applicable
provisions of the Indenture and New GMAC hereby assumes all of the covenants,
agreements and obligations of the Company pursuant to Article Eleven of the
Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all of the day and year first above written.
[SEAL] GENERAL MOTORS ACCEPTANCE
CORPORATION, a New York corporation
ATTEST:
__________________________ By:_______________________________
Secretary Title:
[SEAL] GENERAL MOTORS ACCEPTANCE
CORPORATION, a Delaware corporation
ATTEST:
__________________________ By:_______________________________
Secretary Title:
<PAGE>
[SEAL] THE CHASE MANHATTAN BANK, TRUSTEE
ATTEST:
__________________________ By:_______________________________
Assistant Secretary Title:
STATE OF MICHIGAN )
) ss.
COUNTY OF WAYNE )
On the first day of January, 1998, before me personally came , to me
known, who, being by me duly sworn, did depose and say that he is a Vice
President of GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
-------------------------------
Notary Public
STATE OF MICHIGAN )
) ss.
COUNTY OF WAYNE )
On the first day of January, 1998, before me personally came , to me
known, who, being by me duly sworn, did depose and say that he is a Vice
President of GENERAL MOTORS ACCEPTANCE CORPORATION, a New York corporation, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
-------------------------------
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the first day of January, 1998, before me personally came , to me
known, who, being by me duly sworn, did depose and say that he is a Vice
President of THE CHASE MANHATTAN BANK, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the By-Laws of said corporation, and that
he signed his name thereto by like authority.
[NOTARIAL SEAL]
-------------------------------
Notary Public
EXHIBIT 5
GENERAL MOTORS ACCEPTANCE CORPORATION
3031 WEST GRAND BOULEVARD
DETROIT, MICHIGAN 48202
March 18, 1998
GENERAL MOTORS ACCEPTANCE CORPORATION
3044 WEST GRAND BOULEVARD
DETROIT, MICHIGAN 48202
Dear Sirs:
As Assistant General Counsel of General Motors Acceptance Corporation
(the "Company") in connection with the proposed issue and sale of
SmartNotes(tm) Due Nine Months to Thirty Years from Date of Issue (the "Notes")
pursuant to a Registration Statement filed this date, I advise that in my
opinion you have full power and authority under the laws of Delaware, the State
of your incorporation, and under your Certificate of Incorporation, as amended,
to borrow the money and to contract the indebtedness to be evidenced by the said
Notes.
It is my further opinion that the Indenture, dated as of September 24,
1996, with The Chase Manhattan Bank, Trustee, as amended by a First Supplemental
Indenture dated as of January 1, 1998, has been duly authorized, executed and
delivered and that the Notes, when duly executed and authenticated as provided
in the Indenture, issued and paid for, will be valid and legally binding
obligations of the Company in accordance with and subject to the terms thereof
and of the Indenture.
I hereby consent to the use of the foregoing opinion as Exhibit 5 of
your Registration Statement filed with the United States Securities and Exchange
Commission under the Securities Act of 1933, as amended, with respect to the
above mentioned Notes and to the use of my name in such Registration Statement
and in the related Prospectus under the heading "Legal Opinions".
Very truly yours,
s/ Martin I. Darvick
-------------------------
Martin I. Darvick
Assistant General Counsel
EXHIBIT 8
March 18, 1998
General Motors Acceptance Corporation
3031 West Grand Boulevard
P.O. Box 33123
Detroit, MI 48232
Dear Sirs:
In connection with the General Motors Acceptance Corporation (the
"Company") Prospectus for the proposed issue and sale of SmartNotes(tm) Due
Nine Months to Thirty Years from Date of Issue (the "Notes"), I have acted
as tax counsel to the Company, and in that capacity have furnished certain
opinions to it. I hereby confirm to you that the opinion as set forth under
the heading "United States Federal Taxation" in the Prospectus covering
such Notes which is part of the registration statement to which this letter
is attached as an exhibit. As indicated in the opinion, the discussion
sets forth a general summary of certain United States Federal income tax
consequences of the ownership and disposition of the Notes as applied to
original holders purchasing Notes at the issue price. Holders are advised
to consult their own tax advisors with regard to the application of the
income tax laws to their particular situations as well as any tax
consequences arising under the laws of any state, local or foreign tax
jurisdiction.
I hereby consent to the filing with the Securities and Exchange Commission
of this opinion as an exhibit to the Registration Statement, as amended,
and to the reference to tax counsel under the heading "United States
Federal Taxation" in the Prospectus. By providing the foregoing consent, I
do not admit that tax counsel fall within the category of persons whose
consent is required under section 7 of the Securities Act of 1933, as
amended.
Yours very truly,
s/ Robert N. Deitz
------------------
Robert N. Deitz
Senior Tax Counsel
EXHIBIT 12
GENERAL MOTORS ACCEPTANCE CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
(In millions of dollars)
Years Ended December 31,
------------------------------------------------
1997 1996 1995 1994 1993
-------- -------- -------- -------- --------
Consolidated net income* .. $1,301.1 $1,240.5 $1,031.0 $ 927.1 $ 981.1
Provision for income taxes 912.9 837.2 752.2 512.7 591.7
-------- -------- -------- -------- --------
Consolidated income before
income taxes ............ 2,214.0 2,077.7 1,783.2 1,439.8 1,572.8
-------- -------- -------- -------- --------
Fixed Charges
Interest and discount ... 5,255.5 4,937.5 4,936.3 4,230.9 4,721.2
Portion of rentals
representative of the
interest factor ....... 69.8 77.8 54.5 51.2 43.6
-------- -------- -------- -------- --------
Total fixed charges ....... 5,325.3 5,015.3 4,990.8 4,282.1 4,764.8
-------- -------- -------- -------- --------
Earnings available for
fixed charges ........... $7,539.3 $7,093.0 $6,774.0 $5,721.9 $6,337.6
======== ======== ======== ======== ========
Ratio of earnings to
fixed charges ........... 1.42 1.41 1.36 1.33 1.33
======== ======== ======== ======== ========
* Before cumulative effect of accounting change of ($7.4) million in 1994.
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of General Motors Acceptance Corporation on Form S-3 of our report
dated January 26, 1998, appearing in the Annual Report on Form 10-K of
General Motors Acceptance Corporation for the year ended December 31, 1997
and to the reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
- ---------------------------------------
DELOITTE & TOUCHE LLP
Detroit, Michigan
March 18, 1998
Exhibit 25
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
--------------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
--------------------------------------------------
THE CHASE MANHATTAN BANK
--------------------------------------------------
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
- ----------------------- ------------------
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
- --------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
---------------------------------------------------------
(Name, address and telephone number of agent for service)
GENERAL MOTORS ACCEPTANCE CORPORATION
--------------------------------------------------
(Exact name of obligor as specified in its charter)
DELAWARE 38-0572512
- ------------------------------- ------------------
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
3044 WEST GRAND BOULEVARD
NEW CENTER ONE, SUITE 695
DETROIT, MICHIGAN 48202
- --------------------------------------- ------------------
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
-------------------------------------------
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New
York 12110. Board of Governors of the Federal Reserve System,
Washington, D.C., 20551. Federal Reserve Bank of New York,
District No. 2, 33 Liberty Street, New York, N.Y. Federal
Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 4th day of March, 1998.
THE CHASE MANHATTAN BANK
By: S/JAMES P. FREEMAN
----------------------------
JAMES P. FREEMAN
Assistant Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1997,
in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
------ --------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ......................................... $ 12,428
Interest-bearing balances ................................. 3,428
Securities:
Held to maturity securities .................................... 2,561
Available for sale securities .................................. 43,058
Federal funds sold and securities purchased under
agreements to resell ...................................... 29,633
Loans and lease financing receivables:
Loans and leases, net of unearned income.... $129,260
Less: Allowance for loan and lease losses... 2,783
Less: Allocated transfer risk reserve ...... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve .................................... 126,477
Trading Assets ................................................. 62,575
Premises and fixed assets (including capitalized
leases) ................................................... 2,943
Other real estate owned ........................................ 295
Investments in unconsolidated subsidiaries and
associated companies ...................................... 231
Customers' liability to this bank on acceptances
outstanding ............................................... 1,698
Intangible assets .............................................. 1,466
Other assets ................................................... 10,268
--------
TOTAL ASSETS ................................................... $297,061
========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ....................................... $94,524
Noninterest-bearing ........................ $39,487
Interest-bearing ........................... 55,037
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .................................... 71,162
Noninterest-bearing ........................ $3,205
Interest-bearing ........................... 67,957
------
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................ 43,181
Demand notes issued to the U.S. Treasury ....................... 1,000
Trading liabilities ............................................ 48,903
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............. 3,599
With a remaining maturity of more than one year
through three years ....................................... 253
With a remaining maturity of more than three years ........ 132
Bank's liability on acceptances executed and outstanding ....... 1,698
Subordinated notes and debentures .............................. 5,715
Other liabilities .............................................. 9,896
TOTAL LIABILITIES .............................................. 280,063
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus .................. 0
Common stock ................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ....... 10,291
Undivided profits and capital reserves ......................... 5,502
Net unrealized holding gains (losses)
on available-for-sale securities ............................... (22)
Cumulative foreign currency translation adjustments ............ 16
TOTAL EQUITY CAPITAL ........................................... 16,998
-------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................... $297,061
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE )DIRECTORS
WILLIAM B. HARRISON, JR. )
- 5 -
EXHIBIT 99
ABN AMRO Incorporated
208 South LaSalle Street
Chicago, IL 60604-1003
(312) 855-7600
March 16, 1998
Martin Darvick
General Motors Acceptance Corporation
New Center One
3031 West Grand Boulevard
Suite 695
Detroit, MI 48202
Dear Mr. Darvick:
We confirm that ABN AMRO Incorporated, a dealer in the General Motors Acceptance
Corporation SmartNotes Program (the "Program"), has acted, and will continue to
act in compliance with Rule 15c2-8 (the "Rule") under the Securities and
Exchange Act of 1934, as amended, solely to the extent the Rule is applicable in
the offering of SmartNotes under the Program.
Yours very truly,
s/Jeffrey P. Novak
- ------------------
Jeffrey P. Novak
Sr. Vice President
<PAGE>
A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, Missouri 63103
(314) 955-3000
March 16, 1998
Robert J. Reilly
General Motors Acceptance Corporation
New Center One, Suite 695
3031 West Grand Boulevard
Detroit, MI 48202
Dear Mr. Reilly:
A.G. Edwards & Sons, Inc. ("A.G. Edwards") represents that it is in compliance
with the provisions of SEC Rule 15c2-8 under the Securities and Exchange Act of
1934 (the "Exchange Act"), as amended, solely to the extent the Rule is
applicable to the offering of SmartNotes(sm) under the General Motors Acceptance
Corporation (GMAC) SmartNotes(sm) Program (the "Program"). This representation
is made expressly based on the following: It is the understanding of A.G.
Edwards that GMAC is the issuer of notes issued pursuant to the program;
It is the understanding of A.G. Edwards that GMAC is a reporting company
pursuant to Section 13(a) or 15(d) of the Exchange Act;
It is the understanding of A.G. Edwards that the SmartNotes(sm) are issued
pursuant to the provisions of SEC Rules 415 and 434 under the Securities Act of
1933 and that the base prospectus for the SmartNotes(sm) program constitutes a
"prospectus subject to completion" within the meaning of SEC Rule 434(g); and
A.G. Edwards has taken reasonable steps to ensure the availability to its
associated persons of both the SmartNotes(sm) "prospectus subject to completion"
and the final prospectus by providing notice of the availability of such
materials via an internal electronic news story accessible to such brokers.
If you have any questions regarding this letter, please feel free to contact me
at (314) 955-5000.
Sincerely,
A.G. Edwards & Sons, Inc.
s/John E. Meiners
- -----------------
John E. Meiners
Vice President
<PAGE>
Edward Jones
12555 Manchester Road
St. Louis, MO 63131-3729
314-515-2000
www.edwardjones.com
March 13, 1998
Mr. Robert J. Reilly
GMAC Financial Services
3031 West Grand Boulevard
New Center One, Suite 695
Detroit, MI 48202
Dear Mr. Reilly:
This letter services as a confirmation that Edward D. Jones & Company, L.P., a
dealer in the General Motors Acceptance Corporation SmartNotes Program (the
"Program"), has acted in compliance with Rule 15c2-8 (the "Rule") under the
Securities and Exchange Act of 1934, as amended, solely to the extent the Rule
is applicable in the offering of SmartNotes under the Program.
Most sincerely,
s/Kevin N. Flatt
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Kevin N. Flatt
Principal
Fixed Income
<PAGE>
Fidelity Capital Markets
World Trade Center
164 Northern Avenue, ZT3
Boston, MA 02210
617.563.1953
Fax 617.476.9631
March 16, 1998
Robert J. Reilly
General Motors Acceptance Corporation
New Center One, Suite 695
3031 West Grand Boulevard
Detroit, MI 48202
Dear Mr. Reilly:
We confirm that Fidelity Capital Markets, a dealer in the General Motors
Acceptance Corporation SmartNotes Program (the "Program"), has acted and will
continue to act in compliance with Rule 15c2-8 (the "Rule") under the Securities
and Exchange Act of 1934, as amended, solely to the extent that the Rule is
applicable in the offering of SmartNotes under the Program.
Sincerely,
s/Timothy A. Hogan
- ------------------
Timothy A. Hogan
A division of National Financial Services Corporation. Member NYSE, SIPC.
<PAGE>
Prudential Securities Incorporated
One New York Plaza
New York, NY 10292
212 778-3020
March 13, 1998
Mr. Martin Darvick
Assistant General Counsel
General Motors Acceptance Corporation
3031 West Grand Boulevard
New Center One, Suite 695
Detroit, MI 48202
Dear Mr. Darvick:
We confirm that Prudential Securities Incorporated, a dealer in the General
Motors Acceptance Corporation SmartNotes Program (the "Program"), has acted in
compliance with Rule 15c2-8 (the "Rule") under the Securities and Exchange Act
of 1934, as amended, solely to the extent the Rule is applicable in the offering
of SmartNotes under the Program.
Yours very truly,
s/Frank P. Sinatra
- ------------------
Frank P. Sinatra
Managing Director
Debt Transactions Group
<PAGE>
Salomon Smith Barney
A Member of Travelers Group
March 16, 1998
General Motors Acceptance Corporation
3031 West Grand Boulevard
New Center One, Suite 695
Detroit, MI 48202
We confirm that Smith Barney Inc., as a dealer in the General Motors Acceptance
Corporation SmartNotes Program (the "Program"), has acted in compliance with
Rule 15c2-8 (the "Rule") under the Securities and Exchange Act of 1934, as
amended, solely to the extent the Rule is applicable in the offering of
SmartNotes under the Program.
Sincerely,
s\Theresa M. Gallagher
- ----------------------
SMITH BARNEY INC.
Name: Theresa M. Gallagher
Title: Managing Director
