Parent Undertaking Agreement - Dell Computer Corp. and Norwest Bank Minnesota NA
EXECUTION COPY
PARENT UNDERTAKING AGREEMENT
PARENT UNDERTAKING AGREEMENT, dated as of November 21, 1995, made by
DELL COMPUTER CORPORATION, a corporation organized and existing under the laws
of the State of Delaware ("Dell"), in favor of Norwest Bank Minnesota, National
Association, as Trustee (the "Trustee") on behalf of the Certificateholders.
WHEREAS, Dell Marketing L.P., as seller, 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 Sales L.P., as seller, and the Transferor have
entered into a Receivables Purchase Agreement dated as of November 21, 1995; and
WHEREAS, Dell USA L.P. (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 shall have executed and delivered this Agreement;
NOW, THEREFORE, in consideration of the premises and in order to induce
Investor Certificateholders to make purchases of Certificates and to fund
Increases, Dell hereby agrees 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 Parent Undertaking
Agreement, as the same may from time to time be amended, supplemented or
otherwise modified.
SECTION 2. Unconditional Undertaking. Dell 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 Servicer (for as
long as Dell USA L.P., or any Person who assumes the role of Servicer pursuant
to a merger or consolidation permitted under Section 8.02 of the Pooling and
Servicing Agreement, is the Servicer) of all of the covenants, agreements and
undertakings under Sections 3.02, 3.04 and 11.05 of
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the Pooling and Servicing Agreement (such covenants, agreements, and other
obligations under the Pooling and Servicing Agreement being the "Servicing
Undertakings"), and agrees to pay any and all expenses (including reasonable
counsel fees and expenses) incurred by the Trustee in enforcing any of their
rights under this Agreement. In the event that the Servicer shall fail in any
manner whatsoever to perform or observe any of the Servicing Undertakings when
the same shall be required to be performed, then Dell will itself duly and
punctually perform or observe, or cause to be duly and punctually performed and
observed, such Servicing Undertaking, and it shall not be a condition to the
accrual of the obligation of Dell hereunder to perform or observe any Servicing
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 Dell
or the Servicer or their respective successors or assigns, or have instituted
any action or proceedings against Dell or the Servicer 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 giving of a
Termination Notice or the occurrence of a Termination Event or a Trust Early
Amortization Event. The parties hereto agree that nothing contained in this
Agreement shall in any manner expand the obligations of Dell under the
Servicing Undertakings beyond the covenants, agreements and undertakings of the
Servicer under Sections 3.02, 3.04 and 11.05 of the Pooling and Servicing
Agreement.
SECTION 3. Obligation Absolute. Dell undertakes that the Servicing
Undertakings will be performed strictly in accordance with the terms of the
Pooling and Servicing Agreement or any document delivered in connection
therewith. The obligations of Dell under this Agreement are independent of the
Servicing Undertakings, and a separate action or actions may be brought and
prosecuted against Dell to enforce this Agreement, irrespective of whether any
action is brought against the Servicer or whether the Servicer is joined in any
such action.
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 Servicing
Undertakings is rescinded or must otherwise be returned by the Trustee upon the
insolvency, bankruptcy or reorganization of any party to any Transaction
Document, all as though payment had not been made.
SECTION 4. Subrogation. Dell will not, 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 passage of
time or both, would become an Early Amortization Event or Cure Period, exercise
any rights which it may acquire by way of subrogation under this Agreement, by
any payment made hereunder or otherwise, until all
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amounts in connection with the Servicing 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 Dell on account of such
subrogation rights at any time prior to the later of (i) the payment in full of
the Servicing 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 Servicing 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 Servicing Undertakings
thereafter existing.
SECTION 5. Representations and Warranties. Dell hereby represents and
warrants as follows:
(a) Organization and Good Standing. Dell is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has, in all material respects, full corporate
power, authority and legal right to own its properties and conduct its
business as such properties are presently owned and as such business is
presently conducted and as is proposed to be conducted, and to execute,
deliver and perform its obligations under this Agreement.
(b) Due Qualification. Dell is duly qualified to do business and
is in good standing as a foreign corporation (or is exempt from such
requirements), and has obtained all necessary licenses and approvals,
in each jurisdiction in which the nature of its business requires such
qualification, except where failure to so qualify or to obtain such
licenses or approvals would not have a material adverse effect on its
ability to perform its obligations hereunder.
(c) Due Authorization. Dell's execution, delivery and performance
of this Agreement, and the consummation of the transactions
contemplated by this Agreement, have been duly and validly authorized
by all necessary corporate action on the part of Dell.
(d) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of Dell, enforceable against it in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally, now and hereafter
in effect, and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity).
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(e) No Conflict. Dell's execution and delivery of this Agreement,
its performance of the transactions contemplated by this Agreement, and
its fulfillment of the terms hereof, do not (i) conflict with or
violate in any material respects (A) Dell's certificate of
incorporation or by-laws, (B) any Requirements of Law applicable to
Dell or (C) any order, writ, judgment, award, injunction or decree
binding on or affecting Dell or its properties, (ii) conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default
under, any material indenture, contract, agreement, mortgage, deed of
trust or other instrument to which it is a party or by which it or its
properties are bound or (iii) result in or require the creation of any
Lien with respect to its properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of Dell, threatened against Dell
before any Governmental Authority (i) asserting the illegality,
invalidity or unenforceability, or seeking any determination or ruling
that would affect the legality, binding effect, validity or
enforceability, of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement,
or (iii) seeking any determination or ruling that is reasonably likely
to materially and adversely affect the financial condition or
operations of Dell or the performance by it of its obligations under
this Agreement.
(g) No Consents. No authorization, consent, license, order or
approval of or registration or declaration with any Person or
Governmental Authority is required to be obtained, effected or given by
Dell in connection with its execution and delivery of this Agreement or
the performance of its obligations hereunder.
(h) Financials. Any financial statement, document, book, record or
report requested or required to be furnished by Dell to the Trustee in
connection with this Agreement is or was prepared in accordance with
generally accepted accounting principles and fairly presents or
presented the financial condition of Dell as of its date or (except as
otherwise disclosed to the Trustee at such time) as of the date so
furnished.
(i) Ownership. As of the date hereof, Dell is the registered and
beneficial owner of all of the issued and outstanding shares of the
capital stock of Dell International Incorporated, which is in turn the
registered and beneficial owner of all of the issued and outstanding
shares of the capital stock of Dell Gen. P. Corp and Dell USA
Corporation; Dell Gen. P. Corp is the sole general partner of Dell
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Marketing L.P., Dell Direct Sales L.P. and the Servicer; Dell USA
Corporation is the sole limited partner of the Servicer and the
registered and beneficial owner of all of the issued and outstanding
shares of the capital stock of Dell Marketing Corporation and Dell
Direct Sales Corporation.; and Dell Marketing Corp. is the sole limited
partner of Dell Marketing L.P and Dell Direct Sales Corporation is the
sole limited partner of Dell Direct Sales L.P.
SECTION 6. Covenants. Dell covenants and agrees that, until the
termination of the Trust, Dell will, unless the Trustee shall otherwise consent
in writing:
(a) Ownership. Be the direct or indirect owner of all of the
issued and outstanding shares of the capital stock, partnership
interests or other equity interests of Dell Marketing L.P. and Dell
Direct Sales L.P., the Servicer and the Transferor and of any successor
of any of the aforementioned (other than a successor servicer if the
Servicer is terminated pursuant to the Pooling and Servicing Agreement)
which may become a party to any of the Transaction Documents.
(b) No Petition. Not commence or institute any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any federal or state bankruptcy or similar law,
against the Transferor or any successor to the Transferor which becomes
a party to any of the Transaction Documents.
SECTION 7. Amendments, Etc. (a) This Agreement may be amended from time
to time by Dell and the Trustee 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 Dell and
the Trustee, 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
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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 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 8. 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,
Dell Computer Corporation
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 9. 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 10. Continuing Agreement. This Agreement shall (a) remain in
full force and effect until the later of (i) the payment of all other amounts
payable under this Agreement and the Pooling and Servicing Agreement and (ii)
termination of the Trust, (b) be binding upon Dell, its 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 11. 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 12. 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 13. 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 conduct, course of dealing, statements (whether verbal of written),
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actions of any of the parties hereto or any other relationship 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 14. 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 15. 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, Dell has caused this Parent Undertaking Agreement
to be duly executed by its officer thereunto duly authorized as of the day and
year first above written.
DELL COMPUTER CORPORATION
By /s/ Thomas J. Meredith
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Name: THOMAS J. MEREDITH
Title: SENIOR VICE PRESIDENT AND
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 OFFICE