ISSUING AND PAYING AGENCY AGREEMENT
This Agreement, dated as of June 1, 2006, is by and between
Dell Inc. (the “Issuer”) and JPMorgan Chase
Bank (“JPMorgan”).
1. | APPOINTMENT AND ACCEPTANCE |
The Issuer hereby appoints JPMorgan as its issuing and paying
agent in connection with the issuance and payment of certain
short-term promissory notes of the Issuer (the
“Notes”), as further described herein, and
JPMorgan agrees to act as such agent upon the terms and
conditions contained in this Agreement.
2. | COMMERCIAL PAPER PROGRAMS |
The Issuer may establish one or more commercial paper programs
under this Agreement by delivering to JPMorgan a completed
program schedule (the “Program Schedule”), with
respect to each such program. JPMorgan has given the
Issuer a copy of the current form of Program Schedule and the
Issuer shall complete and return its first Program Schedule to
JPMorgan prior to or simultaneously with the execution of this
Agreement. In the event that any of the information provided in,
or attached to, a Program Schedule shall change, the Issuer
shall promptly inform JPMorgan of such change in writing.
3. | NOTES |
All Notes issued by the Issuer under this Agreement shall be
short-term promissory notes, exempt from the registration
requirements of the Securities Act of 1933, as amended, as
indicated on the Program Schedules, and from applicable state
securities laws. The Notes may be placed by dealers (the
“Dealers”) pursuant to Section 4 hereof.
Notes shall be issued in either certificated or book-entry form.
4. | AUTHORIZED REPRESENTATIVES |
The Issuer shall deliver to JPMorgan a duly adopted corporate
resolution from the Issuer’s Board of Directors authorizing
the issuance of Notes and a Secretary’s Certificate, with
specimen signatures attached, of those officers, employees and
agents of the Issuer authorized to take certain actions with
respect to the Notes as provided in this Agreement (each such
person is hereinafter referred to as an “Authorized
Representative”). Until JPMorgan receives any
subsequent written notice from the Issuer, JPMorgan shall be
entitled to rely on the Secretary’s Certificate delivered
to it for the purpose of determining the Authorized
Representatives. The Issuer represents and warrants that each
Authorized Representative may appoint other officers, employees
and agents of the Issuer (the “Delegates”),
including without limitation any Dealers, to issue instructions
to JPMorgan under this Agreement, and take other actions on the
Issuer’s behalf hereunder, provided that notice of the
appointment of each Delegate is delivered to JPMorgan in
writing. Each such appointment shall remain in effect unless and
until revoked by the Issuer in a written notice to JPMorgan.
5. | CERTIFICATED NOTES |
If and when the Issuer intends to issue certificated notes
(“Certificated Notes”), the Issuer and JPMorgan
shall agree upon the form of such Notes. Thereafter, the Issuer
shall from time to time deliver to JPMorgan adequate supplies of
Certificated Notes which will be in bearer form, serially
numbered, and shall be executed by the manual or facsimile
signature of an Authorized Representative. JPMorgan will
acknowledge receipt of any supply of Certificated
Notes received
from the Issuer, noting any exceptions to the shipping manifest
or transmittal letter (if any), and will hold the Certificated
Notes in safekeeping for the Issuer in accordance with
JPMorgan’s customary practices which shall meet or exceed
industry standard safekeeping practices. JPMorgan shall not have
any liability to the Issuer to determine by whom or by what
means a facsimile signature may have been affixed on
Certificated Notes, or to determine whether any facsimile or
manual signature is genuine, if such facsimile or manual
signature resembles the specimen signature attached to the
Issuer’s certificate of incumbency with respect to such
Authorized
Representative. Any Certificated Note bearing the manual or
facsimile signature of a person who is an Authorized
Representative on the date such signature was affixed shall bind
the Issuer after completion thereof by JPMorgan, notwithstanding
that such person shall have ceased to hold his or her office on
the date such Note is countersigned or delivered by JPMorgan.
6. | BOOK-ENTRY NOTES |
The Issuer’s book-entry notes (“Book-Entry
Notes”) shall not be issued in physical form, but their
aggregate face amount shall be represented by a master note (the
“Master Note”) in the form of Exhibit A
executed by the Issuer pursuant to the book-entry commercial
paper program of The Depository Trust Company
(“DTC”). JPMorgan shall maintain the Master
Note in safekeeping, in accordance with its customary practices,
on behalf of Cede & Co., the registered owner thereof
and nominee of DTC. As long as Cede & Co. is the
registered owner of the Master Note, the beneficial ownership
interest therein shall be shown on, and the transfer of
ownership thereof shall be effected through, entries on the
books maintained by DTC and the books of its direct and indirect
participants. The Master Note and the Book-Entry Notes shall be
subject to DTC’s rules and procedures, as amended from time
to time. JPMorgan shall not be liable or responsible for sending
transaction statements of any kind to DTC’s participants or
the beneficial owners of the Book-Entry Notes, or for
maintaining, supervising or reviewing the records of DTC or its
participants with respect to such Notes. In connection with
DTC’s program, the Issuer understands that as one of the
conditions of its participation therein, it shall be necessary
for the Issuer and JPMorgan to enter into a Letter of
Representations, in the form of Exhibit B hereto, and for
DTC to receive and accept such Letter of Representations. In
accordance with DTC’s program, JPMorgan shall obtain from
the CUSIP Service Bureau a written list of CUSIP numbers for
Issuer’s Book-Entry Notes, and JPMorgan shall deliver such
list to DTC. The CUSIP Service Bureau shall xxxx the Issuer
directly for the fee or fees payable for the list of CUSIP
numbers for the Issuer’s Book-Entry Notes.
7. | ISSUANCE INSTRUCTIONS TO JPMORGAN; PURCHASE PAYMENTS |
The Issuer understands that all instructions under this
Agreement are to be directed to JPMorgan’s Commercial Paper
Operations Department. JPMorgan shall provide the Issuer, or, if
applicable, the Issuer’s Dealers, with access to
JPMorgan’s Money Market Issuance System or other electronic
means (collectively, the “System”) in order
that JPMorgan may receive electronic instructions for the
issuance of Notes. Electronic instructions must be transmitted
in accordance with the procedures furnished by JPMorgan to the
Issuer or its Dealers in connection with the System. These
transmissions shall be the equivalent to the giving of a duly
authorized written and signed instruction which JPMorgan may act
upon without liability. In the event that the System is
inoperable at any time, an Authorized Representative or a
Delegate may deliver written, telephone or facsimile
instructions to JPMorgan, which instructions shall be verified
in accordance with any security procedures agreed upon by the
parties. JPMorgan shall incur no liability to the Issuer in
acting upon instructions reasonably believed by JPMorgan in good
faith to have been given by an Authorized Representative or a
Delegate. In the event that a discrepancy exists between a
telephonic instruction and a written confirmation, the
telephonic instruction will be deemed the controlling and proper
instruction. JPMorgan may electronically record any
conversations made pursuant to this Agreement, and the Issuer
hereby consents to such recordings. All issuance instructions
regarding the Notes must be received by 1:00 P.M. New York
time in order for the Notes to be issued or delivered on the
same day.
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(a) Issuance and Purchase of Book-Entry
Notes. Upon receipt of issuance instructions from
the Issuer or its Dealers with respect to Book-Entry Notes,
JPMorgan shall transmit such instructions to DTC and direct DTC
to cause appropriate entries of the Book-Entry Notes to be made
in accordance with DTC’s applicable rules, regulations and
procedures for book-entry commercial paper programs. JPMorgan
shall assign CUSIP numbers to the Issuer’s Book-Entry Notes
to identify the Issuer’s aggregate principal amount of
outstanding Book-Entry Notes in DTC’s system, together with
the aggregate unpaid interest (if any) on such Notes. Promptly
following DTC’s established settlement time on each
issuance date, JPMorgan shall access DTC’s system to verify
whether settlement has occurred with respect to the
Issuer’s Book-Entry Notes. Prior to the close of business
on such business day, JPMorgan shall deposit immediately
available funds in the amount of the proceeds due the Issuer (if
any) to the Issuer’s account at JPMorgan and designated in
the applicable Program Schedule (the
“Account”), provided that JPMorgan has
received DTC’s confirmation that the Book-Entry Notes have
settled in accordance
with DTC’s applicable rules, regulations and procedures.
JPMorgan shall have no liability to the Issuer whatsoever if any
DTC participant purchasing a Book-Entry Note fails to settle or
delays in settling its balance with DTC or if DTC fails to
perform in any respect.
(b) Issuance and Purchase of Certificated
Notes. Upon receipt of issuance instructions with
respect to Certificated Notes, JPMorgan shall: (a) complete
each Certificated Note as to principal amount, date of issue,
maturity date, place of payment, and rate or amount of interest
(if such Note is interest bearing) in accordance with such
instructions; (b) countersign each Certificated Note; and
(c) deliver each Certificated Note in accordance with the
Issuer’s instructions, except as otherwise set forth below.
Whenever JPMorgan is instructed to deliver any Certificated Note
by mail, JPMorgan shall strike from the Certificated Note the
word “Bearer,” insert as payee the name of the person
so designated by the Issuer and effect delivery by mail to such
payee or to such other person as is specified in such
instructions to receive the Certificated Note. The Issuer
understands that, in accordance with the custom prevailing in
the commercial paper market, delivery of Certificated Notes
shall be made before the actual receipt of payment for such
Notes in immediately available funds, even if the Issuer
instructs JPMorgan to deliver a Certificated Note against
payment. Therefore, once JPMorgan has delivered a Certificated
Note to the designated recipient, the Issuer shall bear the risk
that such recipient may fail to remit payment of such Note or
return such Note to JPMorgan. Delivery of Certificated Notes
shall be subject to the rules of the New York Clearing House in
effect at the time of such delivery. Funds received in payment
of Certificated Notes shall be credited to the Account.
8. | USE OF SALES PROCEEDS IN ADVANCE OF PAYMENT |
JPMorgan shall not be obligated to credit the Issuer’s
Account unless and until payment of the purchase price of each
Note is received by JPMorgan. From time to time, JPMorgan, in
its sole discretion, may permit the Issuer to have use of funds
payable with respect to a Note prior to JPMorgan’s receipt
of the sales proceeds of such Note. If JPMorgan makes a deposit,
payment or transfer of funds on behalf of the Issuer before
JPMorgan receives payment for any Note, such deposit, payment or
transfer of funds shall represent an advance by JPMorgan to the
Issuer to be repaid promptly, and in any event on the same day
as it is made, from the proceeds of the sale of such Note, or by
the Issuer if such proceeds are not received by JPMorgan.
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9. | PAYMENT OF MATURED NOTES |
Notice that the Issuer will not redeem any Note on the relative
Initial Redemption Date (as defined in the applicable
Extendible Commercial Note Announcement) must be received in
writing by JPMorgan by 11:00 A.M. on such Initial
Redemption Date. On any other day when a Note matures or is
prepaid, the Issuer shall transmit, or cause to be transmitted,
to the Account, prior to 2:00 P.M. New York time on the
same day, an amount of immediately available funds sufficient to
pay the aggregate principal amount of such Note and any
applicable interest due. JPMorgan shall pay the interest (if
any) and principal on a Book-Entry Note to DTC in immediately
available funds, which payment shall be by net settlement of
JPMorgan’s account at DTC. JPMorgan shall pay Certificated
Notes upon presentment. JPMorgan shall have no obligation under
the Agreement to make any payment for which there is not
sufficient, available and collected funds in the Account, and
JPMorgan may, without liability to the Issuer, refuse to pay any
Note that would result in an overdraft to the Account.
10. | OVERDRAFTS |
(a) Intraday overdrafts with respect to each Account shall
be subject to terms in the then prevailing treasury agreements
between JPMorgan and the Issuer.
(b) An overdraft will exist in an Account if JPMorgan, in
its sole discretion, (i) permits an advance to be made
pursuant to Section 8 and, notwithstanding the provisions
of Section 8, such advance is not repaid in full on the
same day as it is made, or (ii) pays a Note pursuant to
Section 9 in excess of the available collected balance in
such Account. Overdrafts shall be subject to JPMorgan’s
established banking practices, including, without limitation,
the imposition of interest, funds usage charges and
administrative fees subject to the terms in the then prevailing
treasury agreements between JPMorgan and the Issuer. The Issuer
shall repay any such agreed overdraft, fees and charges no later
than the next business day, together with interest on the
overdraft at the rate subject to the terms in
the then prevailing treasury agreements between JPMorgan and the
Issuer for the Account, computed from and including the date of
the overdraft to the date of repayment.
11. | NO PRIOR COURSE OF DEALING |
No prior action or course of dealing on the part of JPMorgan
with respect to advances of the purchase price or payments of
matured Notes shall give rise to any claim or cause of action by
the Issuer against JPMorgan in the event that JPMorgan refuses
to pay or settle any Notes for which the Issuer has not timely
provided funds as required by this Agreement.
12. | RETURN OF CERTIFICATED NOTES |
JPMorgan will in due course cancel any Certificated Note
presented for payment and return such Note to the Issuer.
JPMorgan shall also cancel and return to the Issuer any spoiled
or voided Certificated Notes. Promptly upon written request of
the Issuer or at the termination of this Agreement, JPMorgan
shall destroy all blank, unissued Certificated Notes in its
possession and furnish a certificate to the Issuer certifying
such actions.
13. | INFORMATION FURNISHED BY JPMORGAN |
Upon the reasonable request of the Issuer, JPMorgan shall
promptly provide the Issuer with information with respect to any
Note issued and paid hereunder, provided, that the Issuer
delivers such request in writing and, to the extent applicable,
includes the serial number or note
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number, principal amount,
payee, date of issue, maturity date, amount of interest (if any)
and place of payment of such Note.
14. | REPRESENTATIONS AND WARRANTIES |
The Issuer represents and warrants that: (i) it has the
right, capacity and authority to enter into this Agreement; and
(ii) it will comply with all of its obligations and duties
under this Agreement. The Issuer further represents and agrees
that each Note issued and distributed upon its instruction
pursuant to this Agreement shall constitute the Issuer’s
representation and warranty to JPMorgan that such Note is a
legal, valid and binding obligation of the Issuer, and that such
Note is being issued in a transaction which is exempt from
registration under the Securities Act of 1933, as amended, and
any applicable state securities law.
15. | DISCLAIMERS |
Neither JPMorgan nor its directors, officers, employees or
agents shall be liable for any act or omission under this
Agreement except in the case of negligence or willful
misconduct. IN NO EVENT SHALL JPMORGAN BE LIABLE FOR SPECIAL,
INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER
(INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF JPMORGAN
HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND
REGARDLESS OF THE FORM OF ACTION. In no event shall
JPMorgan be considered negligent in consequence of complying
with DTC’s rules, regulations and procedures. The duties
and obligations of JPMorgan, its directors, officers, employees
or agents shall be determined by the express provisions of this
Agreement and they shall not be liable except for the
performance of such duties and obligations as are specifically
set forth herein and no implied covenants shall be read into
this Agreement against them. Neither JPMorgan nor its directors,
officers, employees or agents shall be required to ascertain
whether any issuance or sale of any Notes (or any amendment or
termination of this Agreement) has been duly authorized or is in
compliance with any other agreement to which the Issuer is a
party (whether or not JPMorgan is also a party to such
agreement).
16. | INDEMNIFICATION |
The Issuer agrees to indemnify, defend and hold harmless
JPMorgan, its directors, officers, employees and agents
(collectively, “indemnitees”) from and against any and
all third party liabilities, claims, losses, damages, penalties,
costs and expenses (including attorneys’ fees and
disbursements) suffered or incurred by or asserted or assessed
against any indemnitee arising in respect of this Agreement,
except in respect of any indemnitee for any
such liability, claim, loss, damage, penalty, cost or expense
resulting from the negligence or willful misconduct of such
indemnitee. This indemnity will survive the termination of this
Agreement.
17. | OPINION OF COUNSEL |
The Issuer shall deliver to JPMorgan all documents it may
reasonably request relating to the existence of the Issuer and
authority of the Issuer to enter into this Agreement, including,
without limitation, an opinion of counsel, substantially in the
form of Exhibit C hereto [form to be negotiated].
18. | NOTICES |
All notices, confirmations and other communications hereunder
shall (except to the extent otherwise expressly provided) be in
writing and shall be sent by first-class mail, postage prepaid,
by fascimile or by hand, addressed as follows, or to such other
address as the party receiving such notice shall have previously
specified to the party sending such notice:
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If to the Issuer: | Dell Inc |
One Dell Way Mail Stop XX0-00
Xxxxx Xxxx, XX 00000
Attention: Treasury Accounting
Telephone:
000-000-0000
Facsimile:
000-000-0000
If to JPMorgan concerning the daily issuance and redemption of
Notes:
Attention: Commercial Paper Operations
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx XX
00000-0000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
All other: | Attention: Commercial Paper JPM |
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx XX
00000-0000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
19. | COMPENSATION |
The Issuer shall pay compensation for services pursuant to this
Agreement in accordance with the pricing schedules and payment
terms as the parties shall determine. The Issuer shall also
reimburse JPMorgan for any fees and charges imposed by DTC with
respect to services provided in connection with the Book-Entry
Notes.
20. | BENEFIT OF AGREEMENT |
This Agreement is solely for the benefit of the parties hereto
and no other person shall acquire or have any right under or by
virtue hereof.
21. | TERMINATION |
This Agreement may be terminated at any time by either party by
written notice to the other, but such termination shall not
affect the respective liabilities of the parties hereunder
arising prior to such termination.
22. | FORCE MAJEURE |
In no event shall either party be liable for any failure or
delay in the performance of its obligations hereunder because of
circumstances beyond such party’s control, including, but
not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, strikes or work stoppages
for any reason, embargo, government action, including any laws,
ordinances, regulations or the like which restrict or prohibit
the providing of the services contemplated by this Agreement,
inability to obtain material, equipment, or communications or
computer facilities, or the failure of equipment or interruption
of communications or computer facilities, and other causes
beyond such party’s reasonable control whether or not of
the same class or kind as specifically named above;
provided, however, that this Section 22 shall
not apply to the obligation of the Issuer to pay the Notes or to
pay JPMorgan in respect of any funds advanced by JPMorgan to pay
the Notes; and provided further, however, that the
party asserting a force majeure event used reasonable due
diligence to avoid such failure or delay.
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23. | ENTIRE AGREEMENT |
This Agreement, together with the exhibits attached hereto,
constitutes the entire agreement between JPMorgan and the Issuer
with respect to the subject matter hereof and supersedes in all
respects all prior proposals, negotiations, communications,
discussions and agreements between the parties concerning the
subject matter of this Agreement.
24. | WAIVERS AND AMENDMENTS |
No failure or delay on the part of any party in exercising any
power or right under this Agreement shall operate as a waiver,
nor does any single or partial exercise of any power or right
preclude any other or further exercise, or the exercise of any
other power or right. Any such waiver shall be effective only in
the specific instance and for the purpose for which it is given.
No amendment, modification or waiver of any provision of this
Agreement shall be effective unless the same shall be in writing
and signed by the Issuer and JPMorgan.
25. | BUSINESS DAY |
Whenever any payment to be made hereunder shall be due on a day
which is not a business day for JPMorgan, then such payment
shall be made on JPMorgan’s next succeeding business day.
26. | COUNTERPARTS |
This Agreement may be executed in counterparts, each of which
shall be deemed an original and such counterparts together shall
constitute but one instrument.
27. | HEADINGS |
The headings in this Agreement are for purposes of reference
only and shall not in any way limit or otherwise affect the
meaning or interpretation of any of the terms of this Agreement.
28. | GOVERNING LAW |
This Agreement and the Notes shall be governed by and construed
in accordance with the internal laws of the State of New York,
without regard to the conflict of laws provisions thereof.
29. | JURISDICTION AND VENUE |
Each party hereby irrevocably and unconditionally submits to the
jurisdiction of the United States District Court for the
Southern District of New York and any New York State court
located in the Borough of Manhattan in New York City and of any
appellate court from any thereof for the purposes of any legal
suit, action or proceeding arising out of or relating to this
Agreement (a “Proceeding”). Each party hereby
irrevocably agrees that all claims in respect of any Proceeding
may be heard and determined in such Federal or New York State
court and irrevocably waives, to the fullest extent it may
effectively do so, any objection it may now or hereafter have to
the laying of
venue of any Proceeding in any of the aforementioned courts and
the defense of an inconvenient forum to the maintenance of any
Proceeding.
30. | WAIVER OF TRIAL BY JURY |
EACH PARTY HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
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31. | ACCOUNT CONDITIONS |
Each Account shall be subject to account conditions pursuant to
the then prevailing treasury agreements between JPMorgan and the
Issuer.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by duly authorized
officers as of the day and year first-above written.
JPMORGAN CHASE BANK | DELL INC. | |
By: /s/ Xxxxx X. Xxxxx
|
By: /s/ Xxxxx XxxXxxxxx | |
Name: Xxxxx X. Xxxxx
|
Name: Xxxxx XxxXxxxxx | |
Title: Vice President
|
Title: VP/Treasurer | |
Date:
June 1, 2006
|
Date: June 1, 2006 |
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