Cross-Guarantee Agreement - Dell Marketing LP, Dell Direct Sales LP and Dell USA LP
EXECUTION COPY
CROSS-GUARANTEE AGREEMENT
CROSS-GUARANTEE AGREEMENT, dated as of November 21, 1995, made by DELL
MARKETING L.P., a Texas limited partnership ("Dell Marketing"), DELL DIRECT
SALES L.P., a Texas limited partnership ("Dell Direct") and DELL USA L.P., a
Texas limited partnership (together with any successors pursuant to a merger or
consolidation permitted under Section 8.02 of the Pooling and Servicing
Agreement (as hereinafter defined), the "Servicer"), in favor of Norwest Bank
Minnesota, National Association, as Trustee (the "Trustee") on behalf of the
Certificateholders.
WHEREAS, Dell Marketing and Dell Receivables L.P., as Purchaser (the
"Transferor"), have entered into a Receivables Purchase Agreement dated as of
November 21, 1995; and
WHEREAS, Dell Direct and the Transferor have entered into a Receivables
Purchase Agreement dated as of November 21, 1995; and
WHEREAS, the Servicer, the Transferor and the Trustee have entered into
a Pooling and Servicing Agreement dated as of November 21, 1995 (said Agreement,
as it may hereafter be modified from time to time, the "Pooling and Servicing
Agreement"); and
WHEREAS, it is a condition precedent to the transfer of the Receivables
to the Trust and the issuance of the Certificates under the Pooling and
Servicing Agreement that Dell Marketing, Dell Direct and the Servicer shall have
executed and delivered this Agreement and that any future Originator shall be
deemed to enter into this Agreement and agree to the terms hereof (Dell
Marketing, Dell Direct and any future Originators are each referred to herein as
an "Originator");
NOW, THEREFORE, in consideration of the premises and in order to induce
Investor Certificateholders to make purchases of Certificates and to fund
Increases, each Originator and the Servicer hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used herein but not otherwise
defined herein shall have the meanings set forth in the Pooling and Servicing
Agreement. In addition, the term "Agreement" shall mean this Cross-Guarantee
Agreement, as the same may from time to time be amended, supplemented or
otherwise modified.
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SECTION 2. Unconditional Undertaking. Each Originator and the Servicer
each hereby unconditionally and irrevocably undertakes and agrees with and for
the benefit of the Trustee to cause the due and punctual performance and
observance by the other parties hereto, and their respective successors and
assigns, of all of the terms, covenants, conditions, agreements and undertakings
on the part of each such party to be performed or observed by it under the
Transaction Documents in accordance with the terms thereof, including the
punctual payment when due of all obligations now or hereafter existing under the
Transaction Documents, whether for indemnification payments, fees, expenses or
otherwise (such terms, covenants, conditions, agreement, undertakings and other
obligations under the Transaction Documents being the "Undertakings"). Each
Originator and the Servicer agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Trustee in enforcing any
rights under this Agreement. In the event that any Originator or the Servicer
shall fail in any manner whatsoever to perform or observe any of the
Undertakings when the same shall be required to be performed or observed under
the Transaction Documents then any other Originator or the Servicer, as
applicable, will itself duly and punctually perform or observe, or cause to be
duly and punctually performed and observed, such Undertaking, and it shall not
be a condition to the accrual of the obligation of any Originator or the
Servicer, as applicable, hereunder to perform or observe any Undertaking (or to
cause the same to be performed or observed) that the Trustee shall have first
made any request of or demand upon or given any notice to any Originator or the
Servicer, as applicable, or their respective successors or assigns, or have
instituted any action or proceedings against any Originator or the Servicer, as
applicable, or their respective successors or assigns in respect thereof;
provided, however, that nothing contained herein shall affect any requirement
set forth in any Transaction Document that notice be given or time elapse prior
to the occurrence of a Termination Event or a Trust Early Amortization Event.
SECTION 3. Obligation Absolute. Each Originator and the Servicer
undertakes that the Undertakings will be performed or paid strictly in
accordance with the terms of the Transaction Documents or any other document
delivered in connection therewith.
This Agreement shall continue to be effective or be reinstated, as the
case may be, if at any time any payment in connection with any of the
Undertakings is rescinded or must otherwise be returned by the Trustee upon the
insolvency, bankruptcy or reorganization of any Originator or the Servicer, all
as though payment had not been made.
SECTION 4. Subrogation. Each Originator and the Servicer each agrees
that, during the Amortization Period or any Early Amortization Period, Partial
Amortization Period or Cure Period, or if it has knowledge of any event that,
with the giving of notice or
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passage of time or both, would become an Early Amortization Event or Cure
Period, it will not exercise any rights which it may acquire by way of
subrogation under this Agreement, by any payment made hereunder or otherwise,
until all the Undertakings and all other amounts payable under this Agreement
shall have been paid in full and the Trust shall have been terminated. If any
amount shall be paid to any Originator or the Servicer on account of such
subrogation rights at any time prior to the later of (i) the payment in full of
the Undertakings and all other amounts payable under this Agreement and (ii)
termination of the Trust, such amount shall be held in trust for the benefit of
the Trustee and shall forthwith be paid to the Trustee to be credited and
applied upon the Undertakings, whether matured or unmatured, in accordance with
the terms of the Transaction Documents or to be held by the Trustee as
collateral security for any Undertakings thereafter existing.
SECTION 5. Amendments, Etc. (a) This Agreement may be amended from time
to time by each Originator and the Servicer without the consent of any of the
Investor Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provision herein which may be inconsistent with any other
provision herein or (iii) to add any other provisions with respect to matters or
questions arising under this Agreement which are not inconsistent with the
provisions of this Agreement; provided that any amendment pursuant to this
clause (a) shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Investor Certificateholders.
(b) This Agreement may be amended from time to time by each
Originator and the Servicer, with the consent of a Majority in Interest of each
adversely affected Series, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Certificateholders. The Trustee may
request an Officer's Certificate and Opinion of Counsel with respect to an
amendment entered into pursuant to this clause (b) concerning compliance with
the requirements of this Agreement. Any amendment to be effected pursuant to
this clause (b) shall be deemed to adversely affect all outstanding Series,
other than any Series with respect to which such action shall not, as evidenced
by an Opinion of Counsel (which counsel shall not be an employee of, or counsel
for, Dell, the Servicer or the Transferor), addressed and delivered to the
Trustee, adversely affect the interests of any Investor Certificateholder of
such Series.
(c) Promptly after the execution of any such amendment or consent
(other than an amendment pursuant to clause (a)), the Trustee shall furnish
written notification of the substance of such amendment to each Investor
Certificateholder.
(d) It shall not be necessary for the consent of Investor
Certificateholders to approve the particular form of any
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proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Investor Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
SECTION 6. Addresses for Notices. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including telex and facsimile communication) and shall be personally delivered
or sent by certified mail, postage prepaid, or overnight courier or facsimile,
to the intended party at the address or facsimile number of such party set forth
below or at such other address or facsimile number as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be effective (a) if personally delivered, when received,
(b) if sent by certified mail, four Business Days after having been deposited in
the mail, postage prepaid, (c) if sent by overnight courier, two Business Days
after having been given to such courier, unless sooner received by the addressee
and (d) if transmitted by facsimile, when sent, upon receipt confirmed by
telephone or electronic means. Notices and communications sent hereunder on a
day that is not a Business Day shall be deemed to have been sent on the
following Business Day.
If to Dell Marketing,
Dell Marketing L.P.
2214 West Braker Lane, Suite D
Austin, Texas 78758
Tel: (512) 728-3343
Fax: (512) 728-0043
Attn: Treasurer
If to Dell Direct,
Dell Direct Sales L.P.
2214 West Braker Lane, Suite D
Austin, Texas 78758
Tel: (512) 728-3343
Fax: (512) 728-0043
Attn: Treasurer
If to the Servicer,
Dell USA L.P.
2214 West Braker Lane, Suite D
Austin, Texas 78758
Tel: (512) 728-3343
Fax: (512) 728-0043
Attn: Treasurer
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If to the Trustee,
Norwest Bank Minnesota, National Association
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Tel: (612) 667-4610
Fax: (612) 667-9825
Attn: Corporate Trust Department - Tom Wraalstad
SECTION 7. No Waiver; Remedies. No failure on the part of the Trustee
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 8. Continuing Agreement. This Agreement shall (a) remain in
full force and effect until the later of (i) the payment of all amounts payable
under this Agreement and the Pooling and Servicing Agreement and (ii)
termination of the Trust, (b) be binding upon each Originator and the Servicer
and their respective successors and assigns, and (c) inure to the benefit of,
and be enforceable by, the Trustee and its respective successors and permitted
transferees and assigns.
SECTION 9. Governing Law. THIS AGREEMENT, INCLUDING THE RIGHTS AND
DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS.
SECTION 10. Submission to Jurisdiction. Each of the parties hereto
hereby irrevocably and unconditionally submits to the nonexclusive jurisdiction
of any New York State court or federal court of the United States of America
sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement, and each of
the parties hereto hereby irrevocably and unconditionally (i) agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, such federal court
and (ii) waives the defense of an inconvenient forum. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
SECTION 11. Waiver of Jury Trial. Each party hereto waives any right to
a trial by jury in any action or proceeding to enforce or defend any rights
under or relating to this Agreement, any other Transaction Document, or any
amendment, instrument, document or agreement delivered or which may in the
future be delivered in connection herewith or therewith or arising from any
course of
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conduct, course of dealing, statements (whether verbal of written), actions of
any of the parties hereto existing in connection with this Agreement or any
other Transaction Document, and agrees that any such action or proceeding shall
be tried before a court and not before a jury.
SECTION 12. Consent to Service of Process. Each party to this Agreement
irrevocably consents to service of process by personal delivery, certified mail,
postage prepaid or overnight courier. Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any other manner
permitted by law.
SECTION 13. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement.
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IN WITNESS WHEREOF, each of Dell Marketing, Dell Direct and the
Servicer has caused this Cross-Guarantee Agreement to be duly executed by its
officer thereunto duly authorized as of the day and year first above written.
DELL MARKETING L.P.
By DELL GEN. P. CORP.,
as its general partner
By /s/ Thomas J. Meredith
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Name: THOMAS J. MEREDITH
Title: CHIEF FINANCIAL OFFICER
DELL DIRECT SALES L.P.
By DELL GEN. P. CORP.,
as its general partner
By /s/ Thomas J. Meredith
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Name: THOMAS J. MEREDITH
Title: CHIEF FINANCIAL OFFICER
DELL USA L.P.
By DELL GEN. P. CORP.,
as its general partner
By /s/ Thomas J. Meredith
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Name: THOMAS J. MEREDITH
Title: CHIEF FINANCIAL OFFICER
ACCEPTED:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee
By /s/ Michael G. Lugar
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Name: MICHAEL G. LUGAR
Title: CORPORATE TRUST OFFICER