ISSUING AND PAYING AGENCY AGREEMENT
Exhibit (b)(1)
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
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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.
(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
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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.
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
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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.
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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
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
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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 facsimile 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:
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 | ||
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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.
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.
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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.
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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.
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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