Dell Inc. Contracts
Sample Business Contracts
Certificate Purchase Agreement - Dell Receivables LP, Corporate Receivables Corp, Citicorp North America Inc. and Norwest Bank Minnesota NA
EXECUTION COPY
================================================================================
CERTIFICATE PURCHASE AGREEMENT
Dated November 30, 1995
among
DELL RECEIVABLES L.P.
as Seller,
CORPORATE RECEIVABLES CORPORATION,
as Purchaser,
THE LIQUIDITY PROVIDERS NAMED HEREIN,
as Liquidity Providers,
CITICORP NORTH AMERICA, INC.,
as Program Agent for
Corporate Receivables Corporation
and the Liquidity Providers
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
================================================================================
<PAGE> 2
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms............................................. 1
SECTION 1.02 Other Definitional Provisions............................. 4
ARTICLE II
THE PURCHASE; INCREASES
SECTION 2.01 The Purchase.............................................. 4
SECTION 2.02 Increases................................................. 5
SECTION 2.03 Class A Certificates...................................... 5
SECTION 2.04 Reductions to the Class A Purchase Limit.................. 5
SECTION 2.05 Procedures for Making the Purchase and
Increases............................................... 6
SECTION 2.06 Assignment by CRC to Liquidity Providers.................. 7
SECTION 2.07 Term...................................................... 8
ARTICLE III
FEES AND INTEREST PROTECTION
SECTION 3.01 Fees...................................................... 9
SECTION 3.02 Increased Costs........................................... 9
SECTION 3.03 Taxes..................................................... 10
SECTION 3.04 Sharing of Payments....................................... 12
ARTICLE IV
CONDITIONS PRECEDENT TO THE PURCHASE AND ALL INCREASES
SECTION 4.01 Conditions Precedent to the Purchase...................... 12
SECTION 4.02 Conditions Precedent to All Increases..................... 12
ARTICLE V
THE PROGRAM AGENT
SECTION 5.01 Authorization and Action of the Program
Agent................................................... 13
SECTION 5.02 The Program Agent's Reliance, Etc......................... 13
SECTION 5.03 The Program Agent and Affiliates.......................... 13
SECTION 5.04 Amendments, Waivers and Consents.......................... 14
i
<PAGE> 3
Page
----
ARTICLE VI
ASSIGNMENTS
SECTION 6.01 Restrictions on Assignments............................... 15
SECTION 6.02 Rights of Assignee........................................ 15
SECTION 6.03 Notice of Assignment...................................... 15
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Participations............................................ 15
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendments, Etc........................................... 15
SECTION 8.02 Notices, Etc.............................................. 15
SECTION 8.03 No Waiver; Remedies....................................... 16
SECTION 8.04 Binding Effect; Survival.................................. 16
SECTION 8.05 No Proceedings............................................ 17
SECTION 8.06 Captions and Cross References............................. 17
SECTION 8.07 Integration............................................... 17
SECTION 8.08 Governing Law............................................. 17
SECTION 8.09 Submission to Jurisdiction................................ 17
SECTION 8.10 Waiver of Jury Trial...................................... 18
SECTION 8.11 Execution in Counterparts................................. 18
SECTION 8.12 Replacement of Liquidity Providers........................ 18
SECTION 8.11 Reimbursement of Program Agent............................ 18
SECTION 8.12 No Conflict of Interest................................... 18
SECTION 8.13 Withholding Taxes......................................... 18
EXHIBIT A Form of Assignment and Acceptance
EXHIBIT B Form of Notice of Purchase
EXHIBIT C Form of Notice of Increases
EXHIBIT D Form of Officer's Certificate
ii
<PAGE> 4
CERTIFICATE PURCHASE AGREEMENT dated November 30, 1995 (this
"Agreement") among DELL RECEIVABLES L.P., a Texas limited partnership, as Seller
(the "Seller"), CORPORATE RECEIVABLES CORPORATION ("CRC"), as purchaser (the
"Purchaser"), THE FINANCIAL INSTITUTIONS LISTED FROM TIME TO TIME ON THE
SIGNATURE PAGES HERETO AS LIQUIDITY PROVIDERS (individually, a "Liquidity
Provider" and collectively, the "Liquidity Providers"), CITICORP NORTH AMERICA,
INC., as agent (the "Program Agent") for the Purchaser and the Liquidity
Providers, and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Dell Trade Receivables Master Trust may issue the
Series 1995-1 Certificates (as hereinafter defined) at the direction of the
Seller;
WHEREAS, subject to the terms and conditions of this Agreement
and of the Series 1995-1 Supplement, the Seller may sell the Class A
Certificates to CRC or the Liquidity Providers;
WHEREAS, subject to the terms and conditions of this
Agreement, CRC may and the Liquidity Providers shall fund from time to time
Increases in the Class A Invested Amount; and
WHEREAS, the Class A Certificates will be held by the Program
Agent for CRC and the Liquidity Providers;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1
<PAGE> 5
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms. As used in this Agreement, terms
defined in the foregoing paragraphs shall have their defined meanings when used
herein and the following terms shall have the following meanings:
"Adjusted Eurodollar Rate" shall mean, for any period selected
by the Transferor and consented to by the Program Agent (including, but not
limited to, one-month or three-month LIBOR), an interest rate per annum obtained
by dividing (i) the rate per annum at which deposits in U.S. Dollars are offered
by the principal office of Citibank in London to prime banks in the London
interbank market at 11:00 a.m. (London time) two Eurodollar Business Days (as
defined below) before the first day of such period by (ii) the percentage equal
to 100% minus the Eurodollar Reserve Percentage (as defined below) for such
Collection Period. "Eurodollar Business Day" means a day on which dealings are
carried on in the London interbank market and banks are open for business in
London and are not required or authorized to close in New York City. "Eurodollar
Reserve Percentage" for Citibank in London for any period means the reserve
percentage applicable during such period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any successor)
(or, if more than one such percentage shall be so applicable, the daily average
of such percentages for those days in such period during which any such
percentage shall so be applicable) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for Citibank in London in respect of liabilities
or assets consisting of or including Eurocurrency liabilities as that term is
used in Regulation D of the Board of Governors of the Federal Reserve System (or
any successor), having a term equal to such period.
"Assignment and Acceptance" shall mean an assignment and
acceptance in substantially the form of Exhibit A pursuant to which a Liquidity
Provider assigns all or a portion of its rights and obligations under this
Agreement in accordance with the terms of Section 6.01.
"Class A Certificate Interest" shall mean each interest in the
Class A Certificates acquired by CRC or a Liquidity Provider in connection with
the Purchase or any Increase in the Class A Invested Amount.
"Class A Certificateholder" shall mean CRC or the Liquidity
Providers, as applicable.
"CRC" shall mean Corporate Receivables Corporation and its
successors and assigns, but shall not include the Liquidity Providers as
assignee under Section 2.06.
"Dell" shall mean Dell Computer Corporation.
2
<PAGE> 6
"Extension Term" shall have the meaning assigned to such term
in Section 2.07.
"Initial Term" shall mean, with respect to each Liquidity
Provider Commitment, the period which commences on the date such Liquidity
Provider enters into this Agreement and ends on the date which is three years
from the date of this Agreement.
"Liquidity Provider Commitment" shall mean, as to any
Liquidity Provider, the obligation of such Liquidity Provider to (i) make the
Purchase pursuant to Section 2.01, (ii) purchase the Class A Certificate
Interests of CRC pursuant to Section 2.06 and (iii) fund Increases in the Class
A Invested Amount, in each instance up to the amount set forth opposite such
Liquidity Provider's name on the signature pages hereto, subject to Section
2.02, or as otherwise set forth in an Assignment and Acceptance in connection
with an assignment from a Liquidity Provider of its obligations hereunder in
accordance with the terms of Section 6.01, as such amount may be reduced from
time to time pursuant to Section 2.04.
"Liquidity Provider Commitment Percentage" shall mean, on any
day and as to any Liquidity Provider, a fraction, the numerator of which is such
Liquidity Provider's Liquidity Provider Commitment and the denominator of which
is the Class A Purchase Limit on such day, as such percentage may be modified by
assignments made from time to time pursuant to Section 6.01.
"Liquidity Providers" shall mean the banks and financial
institutions party hereto from time to time as "Liquidity Providers" hereunder,
as their names appear on the signature pages hereto under the heading "Liquidity
Providers" or as otherwise set forth in an Assignment and Acceptance in
connection with an assignment from a Liquidity Provider of its rights and
obligations hereunder in accordance with the terms of Section 6.01.
"Majority of Class A Certificate Interests" shall mean holders
of Class A Certificate Interests evidencing 51% of more of the aggregate Class A
Certificate Interests; provided that, solely for purposes of this computation,
(i) Liquidity Providers shall be deemed to hold Class A Certificate Interests
equal to their respective Liquidity Provider Commitment Percentages of such
aggregate Class A Certificate Interests, whether or not they have made the
Purchase or funded any Increases, and (ii) CRC's Class A Certificate Interest
will be reduced by the amount set forth in clause (i) and also by the amount of
any Class A Certificate Interests held by Persons other than Liquidity
Providers.
"Obligations" shall mean all obligations of any Originator,
the Seller, the Servicer or Dell to the Trustee, the Trust, the Purchaser, the
Liquidity Providers, any Enhancement Provider, the other Indemnified Parties and
their respective successors, permitted transferees and assigns, arising under or
in connection with the Transaction Documents and the Fee Letter,
3
<PAGE> 7
howsoever created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due.
"Pooling and Servicing Agreement" shall mean the Pooling and
Servicing Agreement, dated as of November 15, 1995, among the Seller, as
transferor, the Servicer and the Trustee, as amended, supplemented or otherwise
modified from time to time.
"Purchase" shall mean the purchase of the Class A
Certificates, whether by CRC or the Liquidity Providers.
"Purchase Date" shall mean the date of the Purchase.
"Purchase Price" shall mean the price specified in the notice
from the Seller (substantially in the form of Exhibit B) delivered pursuant to
Section 2.01.
"Purchaser" shall mean either CRC or the Liquidity Providers,
as provided in Section 2.01.
"Series 1995-1 Supplement" shall mean the Series 1995-1
Supplement dated as of November 15, 1995 among the Seller, the Servicer and the
Trustee.
"Term" shall mean, with respect to each Liquidity Provider
Commitment, the Initial Term and each Extension Term as provided in Section
2.07.
SECTION 1.02. Other Definitional Provisions. (a) All
capitalized terms not otherwise defined herein are defined in the Series 1995-1
Supplement.
(b) As used herein, in the Class A Certificates and in any
certificate or other document made or delivered pursuant hereto, accounting
terms not defined in Section 1.01 and accounting terms partly defined in Section
1.01 to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles as in effect in the United States
from time to time.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
4
<PAGE> 8
ARTICLE II
THE PURCHASE; INCREASES
SECTION 2.01. The Purchase. (a) CRC may, in its sole
discretion, make the Purchase. CRC's election to make the Purchase is subject to
the satisfaction of the conditions precedent set forth in Section 4.01.
(b) If CRC shall elect not to make the Purchase on the
Purchase Date, the Liquidity Providers shall, subject to the satisfaction of the
conditions precedent set forth in Section 4.01, make the Purchase and shall
become "the Purchaser" in all respects hereunder. Each Liquidity Provider shall
make the Purchase in an amount equal to its Liquidity Provider Commitment
Percentage of the Purchase Price.
(c) Under no circumstances shall CRC or the Liquidity
Providers make the Purchase if, as a result thereof, the Class A Invested Amount
would exceed the Class A Purchase Limit or, in the case of a Liquidity Provider,
such Liquidity Provider's Liquidity Provider Commitment.
SECTION 2.02. Increases. (a) CRC may, in its sole discretion,
from time to time during the period from the date of this Agreement to the last
day of the Revolving Period, upon the request of the Seller and subject to the
satisfaction of the conditions precedent set forth in Section 4.01, fund
Increases, and, upon so funding an Increase, shall acquire Class A Certificate
Interests in an amount corresponding to the amount of such Increase.
(b) If CRC elects not to fund a requested Increase, each
Liquidity Provider shall, upon the request of the Seller and subject to the
satisfaction of the conditions precedent set forth in Section 4.01, fund such
Increase in an amount equal to its Liquidity Provider Commitment Percentage of
the amount of such requested Increase, and shall acquire CRC's Class A
Certificate Interest pursuant to Section 2.06. All Increases funded by the
Liquidity Providers shall be at the Assignee Rate and shall be made on a pro
rata basis in accordance with the Liquidity Provider Commitments.
(c) Under no circumstances shall CRC or any Liquidity Provider
fund any Increase to the extent that, after giving effect to such Increase and
the other Increases to be funded by the other Liquidity Providers concurrently
therewith, (i) the Class A Invested Amount would exceed the Class A Purchase
Limit or (ii) with respect to any Liquidity Provider, the funding of such
Increase would exceed its Liquidity Provider Commitment.
SECTION 2.03. Class A Certificates. On the Purchase Date, on
each date an Increase in the Class A Invested Amount is funded hereunder and on
each date the Class A Invested Amount is reduced, a duly authorized officer or
employee of the Program Agent
5
<PAGE> 9
shall make appropriate notations in its books and records of the Purchase Price,
the amount of such Increase and the amount of such reduction, as applicable.
Each of the Servicer, the Seller and the Trustee hereby authorizes each duly
authorized officer and employee of the Program Agent to make such notations on
the books and records as aforesaid and every such notation made in accordance
with the foregoing authority shall be prima facie evidence of the accuracy of
the information so recorded and shall be binding on the Seller and the Trustee
absent manifest error. All Increases in the Class A Invested Amount shall be
subject to reduction in accordance with the provisions of this Agreement and the
Series 1995-1 Supplement.
SECTION 2.04. Reductions to the Class A Purchase Limit. The
Seller may, from time to time, upon at least 10 Business Days' prior written
notice to the Program Agent, elect to reduce the Class A Purchase Limit by an
amount up to the difference between the Class A Purchase Limit at such time and
the Class A Invested Amount at such time. Any such reduction shall be permanent
and shall reduce the Liquidity Provider Commitments of the Liquidity Providers
hereunder ratably in accordance with the Liquidity Provider Commitment
Percentages.
SECTION 2.05. Procedures for Making the Purchase and
Increases.
(a) Notice of the Purchase and Increases. The Purchase and
each Increase shall occur on a Business Day and shall be made or funded on
notice from the Seller (substantially in the form of Exhibit B, in the case of
the Purchase, or Exhibit C, in the case of an Increase) to the Program Agent
received by the Program Agent not later than 12:00 noon (New York City time) on,
in the case of the Purchase, the fifth Business Day immediately preceding the
Purchase Date or, in the case of an Increase, on the Business Day immediately
preceding the date of such increase (with a copy provided to the Trustee);
provided that if the Class A Certificate Rate for the initial Collection Period
for the resulting Increase is to be calculated at a rate based on the Adjusted
Eurodollar Rate, then such notice must be received not later than 12:00 noon
(New York City time) on the third Business Day next preceding the date of such
Increase. Each notice shall specify the Purchase Price or the amount of the
Increase (in each case, not to be less than $5,000,000) and the Purchase Date or
date of the Increase. The Program Agent shall promptly notify the Seller and
each Liquidity Provider if CRC elects in its discretion not to make the Purchase
or fund an Increase.
(b) Delivery of the Class A Certificates. On the Purchase
Date, the Seller will deliver to the Program Agent, on behalf of the Purchaser,
the Class A Certificates, dated the Purchase Date, registered in the name of the
Purchaser and duly authenticated in accordance with the provisions of the
Pooling and Servicing Agreement against delivery by the Program Agent, on behalf
of the Purchaser, to the Seller of the Purchase Price.
6
<PAGE> 10
(c) Funding of the Purchase and Increases. On the Purchase
Date and any date on which the an Increase is funded, CRC or the Liquidity
Providers, as applicable, shall, upon satisfaction of the applicable conditions
set forth in Article IV, deposit to the Program Agent's account, which shall be
identified as "Dell Master Trust CRC Remittance Account No. 4067-5766",
established at Citibank, N.A., the Purchase Price or amount of the Increase (in
the case of CRC) or its Liquidity Provider Commitment Percentage of the Increase
(in the case of each Liquidity Provider) in same day funds, and after receipt by
the Program Agent of such funds, the Program Agent will deposit the same into
the Seller's account, which shall be identified as "Dell Receivables L.P.
Account No. 4068-5227", established at Citibank, N.A., the Program Agent to use
its best efforts to make such deposit by not later than 12:00 noon (New York
City time).
SECTION 2.06. Assignments by CRC to Liquidity Providers. (a)
On any date during the Term (including, without limitation, any date on which
CRC has elected in its discretion not to fund an Increase hereunder pursuant to
Section 2.02), CRC may, in its own discretion, upon written notice given to the
Program Agent and the Seller, assign to the Liquidity Providers (in accordance
with their respective Liquidity Provider Commitment Percentages) and the
Liquidity Providers shall purchase all of the right and title to and interest in
all Class A Certificate Interests which are then owned by CRC. Such assignment
of Class A Certificate Interests shall be made upon receipt of consideration (in
cash) from the Liquidity Providers equal to the lesser of:
(i) the aggregate amount of outstanding Class A Invested
Amount plus accrued but unpaid interest thereon, and
(ii) FAP x (OB-Writeoffs)
--------------------
LDRA
Where:
FAP = the Class A Certificates' pro rata portion of the
Series 1995-1 Floating Allocation Percentage
OB = the Outstanding Balance of the Receivables
Writeoffs = the Outstanding Balance of any Receivables which
have been or should have been written off,
determined by the Program Agent (which
determination shall be conclusive absent manifest
error) in accordance with CRC's practices and
policies, which practices and policies are in
accordance with generally accepted accounting
principles
7
<PAGE> 11
LDRA = a loss and dilution reserve adjustment, computed by
adding to the number 1 an amount (expressed as a
fraction) equal to 50% of the Class A Specified
Loss and Dilution Reserve Percentage;
provided that no Liquidity Provider shall be required to purchase any Class A
Certificate Interest to the extent that, after giving effect thereto, its
Liquidity Provider Commitment Percentage of the then outstanding Class A
Invested Amount would exceed its Liquidity Provider Commitment. For purposes of
the foregoing computations, Outstanding Balance shall be calculated on the date,
and Writeoffs shall be computed since the date, the Series 1995-1 Floating
Allocation Percentage was last computed or deemed computed.
(b) Upon the assignment described in subsection (a) above, (i)
all Class A Certificate Interests previously owned by CRC and so assigned shall
become Class A Certificate Interests owned by the Liquidity Providers, (ii) the
Program Agent will present the Class A Certificates to the Trustee for transfer
to the Liquidity Providers and the Trustee shall register new Class A
Certificates in the name of the Liquidity Providers and the Program Agent shall
make appropriate notations in its books and records of such assignment and (iii)
the Program Agent shall, to the extent provided under the Series 1995-1
Supplement, pay to CRC on the date of such assignment if such assignment occurs
on a Distribution Date, or on the next succeeding Distribution Date, out of
Collections available for such payments as provided in the Series 1995-1
Supplement, (A) to the extent CRC received the amount described in clause (ii)
of Section 2.06(a) above, all accrued and unpaid interest with respect to the
Class A Invested Amount related to the Class A Certificate Interests so assigned
and (B) any Breakage Costs.
(c) The assignment of Class A Certificate Interests and the
Class A Certificates from CRC to the Liquidity Providers pursuant to this
Section 2.06 shall be without recourse or warranty, express or implied, except
that such Class A Certificate Interests and the Class A Certificates are free
and clear of adverse claims created by or arising as a result of claims against
the Program Agent or CRC. Nothing in this Section 2.06 shall be deemed to limit
any rights of CRC under any other provisions of this Agreement to assign its
right, title to and interest in and to any portion of the Class A Certificate
Interests or the Class A Certificates owned by it.
SECTION 2.07. Term. (a) The Initial Term of each Liquidity Provider
Commitment hereunder shall be for a period commencing on the date such Liquidity
Provider enters into this Agreement and ending on the date that is three years
after the date of this Agreement. Prior to the expiration of the Initial Term or
any Extension Term, the Program Agent may request an extension of such Term
(such extended period being an "Extension Term") and each Liquidity Provider
may, in its sole and absolute discretion, extend
8
<PAGE> 12
its Liquidity Provider Commitment by delivering to the Program Agent a written
notice of such Liquidity Provider's commitment to extend, provided, however,
that any such extension shall be ineffective if an Early Amortization Event has
occurred and is continuing at the time of the proposed commencement of such
Extension Term. Failure of a Liquidity Provider to deliver a notice of such
Liquidity Provider's intent to grant an Extension Term shall be deemed to be an
election by such Liquidity Provider not to grant an Extension Term. If less than
all of the Liquidity Providers have elected to grant an Extension Term and the
Program Agent has been unable to replace any Liquidity Provider which has
declined to grant an Extension Term, such request for an Extension Term shall be
withdrawn and the Program Agent will so notify the Liquidity Providers prior to
the day on which the Term expires.
9
<PAGE> 13
ARTICLE III
FEES AND INTEREST PROTECTION
SECTION 3.01. Fees. The Seller shall pay to the Program Agent
such fee for its own account and for the account of CRC and the Liquidity
Providers in such amounts and at such times as set forth in the Fee Letter.
SECTION 3.02. Increased Costs. (a) If CRC or any Liquidity
Provider (each, an "Affected Person") determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Affected Person and such Affected Person determines that the amount of such
capital is increased by or based upon the existence of any commitment to make
the Purchase or fund Increases or otherwise to maintain its investment in the
Class A Certificates or Class A Certificate Interests, then, upon demand by such
Affected Person (with a copy to the Program Agent and the Seller), the Seller
shall immediately pay to the Program Agent, for the account of such Affected
Person (as a third party beneficiary), additional amounts sufficient to
compensate such Affected Person, in light of the circumstances, for such
increase in capital. A certificate as to such amounts submitted to the Seller
and the Program Agent by such Affected Person shall be conclusive and binding
for all purposes, absent manifest error.
(b) If, due to either (i) the introduction or any change
(other than any change by way of imposition or increase of reserve requirements
referred to in the definition of Eurodollar Reserve Percentage) in or in the
interpretation of any law or regulation or (ii) compliance with any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law), there shall be an increase in the cost to any
Liquidity Provider of any commitment to make the Purchase or to fund Increases
or otherwise to maintain the investment in the Class A Certificates or Class A
Certificate Interests in respect of which the Class A Certificate Rate is the
Adjusted Eurodollar Rate, then, upon demand by such Liquidity Provider (with a
copy to the Program Agent and the Seller), the Seller shall immediately pay to
the Program Agent, for the account of such Liquidity Provider (as a third party
beneficiary), additional amounts sufficient to compensate such Liquidity
Provider for such increase in cost. A certificate as to such amounts submitted
to the Seller and the Program Agent by such Affected Person, shall be conclusive
and binding for all purposes, absent manifest error.
(c) CRC and each Liquidity Provider will promptly notify the
Seller and the Program Agent of any event of which it has knowledge which is
reasonably likely to entitle such Liquidity Provider to compensation pursuant to
this Section 3.02; provided, however, that no failure to give or delay in giving
such
10
<PAGE> 14
notification shall adversely affect the rights of CRC or any Liquidity Provider
to such compensation.
SECTION 3.03. Taxes. (a) Any and all payments and deposits
required to be made hereunder or under any other Transaction Document by the
Seller or the Trustee to or for the benefit of CRC or any Liquidity Provider
shall be made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding taxes imposed on, or measured by
reference to, the net income of, franchise taxes imposed on, and taxes (other
than withholding taxes) imposed on the receipts or gross receipts that are
imposed on CRC or such Liquidity Provider by any of (i) the United States or any
State thereof, (ii) the state jurisdiction under the laws of which CRC or such
Liquidity Provider is organized or in which it is otherwise doing business or
(iii) any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Seller or the Trustee shall be required by law
to deduct any Taxes from or in respect of any sum required to be paid or
deposited hereunder or under any instrument delivered hereunder to or for the
benefit of CRC or any Liquidity Provider, (A) such sum shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums required to be paid or deposited under this
Section 3.03) the amount received by CRC or the relevant Liquidity Provider, or
otherwise deposited hereunder or under such instrument, shall be equal to the
sum which would have been so received or deposited had no such deductions been
made, (B) the Seller or the Trustee (as appropriate) shall make such deductions
and (C) the Seller or the Trustee (as appropriate) shall pay the full amount of
such deductions to the relevant taxation authority or other authority in
accordance with applicable law.
(b) The Seller will indemnify CRC and each Liquidity Provider
for the full amount of Taxes (including, without limitation, any Taxes imposed
by any jurisdiction on amounts payable under this Section 3.03) paid by CRC or
such Liquidity Provider and any liability (including penalties, interest and
expenses) arising therefrom or required to be paid with respect thereto. CRC and
each Liquidity Provider agrees to promptly notify the Seller of any payment of
Taxes made by it and, if practicable, any request, demand or notice received in
respect thereof prior to such payment. CRC and each Liquidity Provider shall be
entitled to payment of this indemnification, as owner of Class A Certificate
Interests pursuant to the terms of the Series 1995-1 Supplement, within 30 days
from the date CRC or such Liquidity Provider makes written demand therefor to
the Program Agent and the Seller. A certificate as to the amount of such
indemnification submitted to the Seller and the Program Agent by CRC or such
Liquidity Provider, setting forth the calculation thereof, shall (absent
manifest error) be conclusive and binding for all purposes.
11
<PAGE> 15
(c) Within 30 days after the date of any payment of Taxes, the
Seller or the Trustee (as the case may be) will furnish to the Program Agent the
original or a certified copy of a receipt evidencing payment thereof.
(d) Notwithstanding the foregoing and any other provisions of
this Section 3.03, the obligations of the Trustee under this Section 3.03 shall
be payable only out of the Trust Assets.
(e) Each Liquidity Provider that is organized under the laws
of a jurisdiction other than the United States or a state thereof hereby agrees
to complete, execute and deliver to the Trustee from time to time prior to the
initial Distribution Date on which such Liquidity Provider will be entitled to
receive distributions pursuant to the Series 1995-1 Supplement and this
Agreement, Internal Revenue Service Forms 1001 or 4224 (or any successor form),
as applicable, or such other forms or certificates as may be required under the
laws of any applicable jurisdiction in order to permit the Seller or the Trustee
to make payments to, and deposit funds to or for the account of, such Liquidity
Provider hereunder and under the other Transaction Documents without any
deduction or withholding for or on account of any tax or with such withholding
or deduction at a reduced rate.
SECTION 3.04. Sharing of Payments. If CRC or any Liquidity
Provider shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of set-off or otherwise) on account of any
Obligation (other than pursuant to Section 3.02 of this Agreement) which is in
excess of its pro rata share of the sum of payments then or theretofore obtained
by CRC and the Liquidity Providers, CRC or any such Liquidity Provider shall
purchase from the Liquidity Providers or CRC, as applicable, such participations
in Obligations held by them as shall be necessary to cause such purchaser to
share the excess payment or other recovery ratably with each of them; provided,
however, that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Liquidity Provider or CRC, as the case
may be, the purchase of such participations shall be rescinded and the seller of
such participation shall repay to such purchaser the purchase price of such
participation to the ratable extent of such recovery together with an amount
equal to such Liquidity Provider's or CRC's ratable share (according to the
proportion of the amount of such seller's required repayment to such purchaser
to the total amount so recovered from such purchaser) of any interest or other
Amount payable by such purchaser in respect of the total amount so recovered.
12
<PAGE> 16
ARTICLE IV
CONDITIONS PRECEDENT TO THE PURCHASE AND ALL INCREASES
SECTION 4.01. Conditions Precedent to the Purchase. (a) The
making of the Purchase is subject to the following conditions precedent:
(i) the Seller shall have furnished to the Purchaser an
opinion of Baker & Botts, L.L.P., counsel for the Seller, dated the
Purchase Date and satisfactory in form and substance to the Purchaser,
as to such matters as the Purchaser may reasonably require;
(ii) the Seller shall have furnished to the Purchaser an
opinion of Thomas B. Green, counsel for the Seller, dated the Purchase
Date and satisfactory in form and substance to the Purchaser, as to
such matters as the Purchaser may reasonably require;
(iii) the Purchaser shall have received an opinion of Brown &
Wood, counsel for the Purchaser, dated the Purchase Date and
satisfactory in form and substance to the Purchaser, as to such matters
as the Purchaser may reasonably require;
(iv) the Purchaser shall have received an opinion of in-house
counsel for the Trustee, dated the Purchase Date and satisfactory in
form and substance to the Purchaser, as to such matters as the
Purchaser may reasonably require;
(v) the Purchaser shall have received a certificate, dated the
Purchase Date, of the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the principal
financial officer or the principal accounting officer of the Seller in
which such officer shall state that the representations and warranties
of the Seller contained in this Agreement and the other Transaction
Documents are true and correct, and the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to such date;
(vi) the Purchaser shall have received evidence satisfactory
to it that, on or before the Purchase Date, UCC-1 financing statements
have been or are being filed in the office of the Secretary of State of
the State of Texas reflecting the grant of the security interest by the
Originators in the Receivables to the Transferor and the grant of the
security interest by the Transferor in the Trust Assets to the Trustee,
for the benefit of the Certificateholders;
(vii) the Class A Certificates shall have been rated "AAA" by
S&P and DCR;
13
<PAGE> 17
(viii) no Termination Event (as defined in the Receivables
Purchase Agreement), Early Amortization Event or Servicer Default, and
no event that (a) if notice of such event were given or (b) after a
specified amount of time had elapsed would become a Termination Event,
Early Amortization Event or Servicer Default, shall have occurred and
be continuing;
(ix) the Revolving Period shall not have ended and an Early
Amortization Period shall not have occurred and be continuing;
(x) any and all representations and warranties made by the
Transferor and by the Servicer in the Series 1995-1 Supplement shall be
true and correct in all material respects, as if repeated on such date
with respect to the facts and circumstances then existing;
(xi) the Pooling and Servicing Agreement, Series 1995-1
Supplement, Receivables Purchase Agreement and Parent Undertaking
Agreement shall be in full force and effect;
(xii) after making the Purchase or funding such Increase, the
Class A Invested Amount shall not exceed the Class A Purchase Limit;
(xiii) the Program Agent shall have received by 12:00 noon
(New York City time), on the Purchase Date or the date of such Increase
the Daily Report, which shall be prepared on a pro forma basis and
shall show that the Seller is in compliance with all of the Transaction
Documents (after giving effect to the Purchase or such Increase); and
(xiv) the Seller shall have delivered to CRC and the Liquidity
Providers an Officer's Certificate in the form of Exhibit D hereto.
(b) If CRC is the Purchaser, the making of the Purchase and
the funding of Increases are subject to the following additional conditions
precedent:
(i) Dell shall have a long-term senior unsecured debt rating
of at least "B" from S&P and Moody's or, if Dell does not have such a
rating from both S&P and Moody's, Dell shall have a long-term senior
unsecured debt rating deemed by the Program Agent, in its sole
discretion, to be of credit quality equivalent to at least "B+" by S&P
and at least "B1" by Moody's; and
(ii) the Program Agent shall not have given notice that CRC
will not make the Purchase or fund an Increase.
SECTION 4.02. Conditions Precedent to All Increases. The
funding of all Increases is subject to the conditions precedent specified in
subsections (viii)-(xiv) of Section 4.01 and to the
14
<PAGE> 18
conditions precedent that (a) CRC shall have made the assignment contemplated in
Section 2.06(a) of all Class A Certificate Interests it then holds and (b) all
Obligors shall have been directed to remit, and shall be remitting, Collections
with respect to Floorplan Receivables directly to a Dell Collection Account.
15
<PAGE> 19
ARTICLE V
THE PROGRAM AGENT
SECTION 5.01. Authorization and Action of the Program Agent.
CRC and each Liquidity Provider hereby appoints and authorizes the Program Agent
to take such action as agent on its behalf and to exercise such powers under
this Agreement and the other Transaction Documents as are delegated to the
Program Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto.
SECTION 5.02. The Program Agent's Reliance, Etc. Neither the
Program Agent nor any of its directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it or the Program Agent
under or in connection with the Transaction Documents or the Fee Letter, except
for its or their own gross negligence or willful misconduct. Without limiting
the generality of the foregoing, the Program Agent (a) may consult with
independent legal counsel (including counsel for the Trust, the Seller or the
Servicer), independent certified public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts, (b) makes no representation or warranty to CRC, any Liquidity Provider
or any such other holder of any interest in the Trust Assets and shall not be
responsible to CRC, any Liquidity Provider or any other holder for any
statements, representations or warranties made in or in connection with this
Agreement, (c) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of the
Transaction Documents or the Fee Letter on the part of the Trust, the Seller or
the Servicer or to inspect the property (including the books and records) of the
Trust, the Seller or the Servicer, (d) shall not be responsible to CRC, any
Liquidity Provider or any other holder of any interest in Trust Assets for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Transaction Document or the Fee Letter (except for the execution by
the Program Agent of, and legality, validity and enforceability against the
Program Agent of its obligations under, the Transaction Documents to which the
Program Agent is a party and the Fee Letter), and (e) shall incur no liability
under or in respect of the Transaction Documents or the Fee Letter by acting
upon any notice (including notice by telephone), consent, certificate or other
instrument or writing (which may be by facsimile or telex believed by it to be
genuine and signed or sent by the proper party or parties; except in each case
for gross negligence or wilful misconduct on the part of the Program Agent.
SECTION 5.03. The Program Agent and Affiliates. Citicorp North
America, Inc. and its Affiliates (including Citibank, N.A.) may generally engage
in any kind of business with the Seller or the Servicer or any Obligor, any of
their respective Affiliates and any Person who may do business with or own
securities of the Servicer or any Obligor or any of their
16
<PAGE> 20
respective Affiliates, all as if Citicorp North America, Inc. were not the
Program Agent and without any duty to account therefor to CRC, any Liquidity
Provider or any other holder of an interest in Trust Assets.
SECTION 5.04. Amendments, Waivers and Consents. CRC and the
Program Agent each reserves the right, in its sole discretion (subject to the
next following sentence), to exercise any rights and remedies available to the
Purchaser or the Program Agent under the Transaction Documents or pursuant to
applicable law, and also to agree to any amendment, modification or waiver of
any Transaction Document, to the extent such Transaction Document provides for,
or requires, the Purchaser's or the Program Agent's agreement, modification or
waiver. Notwithstanding the foregoing, each of CRC and the Program Agent agrees
for the benefit of the Liquidity Providers that it shall not, subject to the
terms of the Transaction Documents:
(a) without the prior written consent of each of the Liquidity
Providers,
(i) reduce in any manner the amount of, or delay the timing
of, distributions to be made to any Class A Certificateholder or
deposits of amounts to be so distributed, or
(ii) reduce any fees payable to the Program Agent or CRC which
relate to payments to Liquidity Providers or delay the dates on which
such fees are payable, or
(iii) modify any provision relating to the Series 1995-1 Loss
and Dilution Reserve, the Series 1995-1 Yield/Fee Reserve or extend the
Revolving Period, or
(iv) release Dell from its obligations under the Parent
Undertaking Agreement, or
(v) amend or waive any Event of Termination or Early
Amortization Event under any Transaction Document relating to the
bankruptcy of the Seller, the Servicer or Dell.
(b) without the prior written consent of the Majority of Class
A Certificate Interests,
(i) amend, modify or waive any provision of any Transaction
Document which would impair any rights expressly granted to an assignee
or participant, or
(ii) change the definitions of Defaulted Receivable, Default
Ratio, Eligible Receivable, Loss to Liquidation Ratio, Net Receivables
Balance, Required Net Receivables Balance, Dilution Ratio or
Concentration Limit, or
17
<PAGE> 21
(iii) amend any Series 1995-1 Early Amortization Event to
increase the maximum permitted Default Ratio, Dilution Ratio or Loss to
Liquidation Ratio, or
(iv) waive violations of the maximum permitted levels for the
Default Ratio, Dilution Ratio or Loss to Liquidation Ratio which
violations occur for more than two consecutive months or by more than
10% of such permitted levels for any time.
18
<PAGE> 22
ARTICLE VI
ASSIGNMENTS
SECTION 6.01. Assignment. (a) At any time and from time to
time, CRC or any Liquidity Provider may assign its interests hereunder in
accordance with the provisions of Section 7.06 of the Series 1995-1 Supplement.
SECTION 6.02. Rights of Assignee. Upon any assignment in
accordance with this Article VI, (a) the assignee receiving such assignment
shall have all of the rights of such assignor hereunder with respect to the
Class A Certificate or Class A Certificate Interest (or portion thereof) or
rights associated therewith being assigned and (b) all references to such
assignor in the Transaction Documents shall be deemed to apply to such assignee
to the extent of its interest in the related Collections.
SECTION 6.03. Notice of Assignment. Each assignor shall
provide notice to the Seller, the Program Agent and the Trustee of any
assignment of any Class A Certificate or Class A Certificate Interest (or
portion thereof) or rights associated therewith by such assignor to any
assignee.
19
<PAGE> 23
ARTICLE VII
PARTICIPATIONS
SECTION 7.01. Participations. Each Liquidity Provider may sell
participations, in minimum amounts of $1,000,000, to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Liquidity
Provider Commitment and the Class A Certificate Interests owned by it);
provided, however, that (i) such Liquidity Provider's obligations under this
Agreement (including, without limitation, its Liquidity Provider Commitment)
shall remain unchanged and (ii) such Liquidity Provider shall remain solely
responsible to the other parties hereto for the performance of such obligations.
The Seller, the Program Agent and the other Liquidity Providers shall continue
to deal solely and directly with such Liquidity Provider in connection with such
Liquidity Provider's rights and obligations under this Agreement.
20
<PAGE> 24
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. Subject to Section 5.04, no
amendment of any provision of this Agreement shall in any event be effective
unless the same shall be in writing and signed by the parties hereto. Any waiver
or consent shall be effective only if signed by the party waiving any right, in
the specific instance and for the specific purpose for which given.
SECTION 8.02. Notices, Etc. 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 under its name on the signature pages hereof 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, except that notices and communications pursuant to Article III
shall not be effective until received. 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.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
the Program Agent, any Liquidity Provider, any Indemnified Party, CRC or any
other holder of any Class A Certificate Interest 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.
Without limiting the foregoing, the Program Agent and each Liquidity Provider is
hereby authorized by the Seller at any time and from time to time, to the
fullest extent permitted by law, to set-off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by the Program Agent and each Liquidity
Provider to or for the credit or the account of the Seller, now or hereafter
existing under this Agreement, to the Program Agent, any Liquidity Provider, any
Indemnified Party or CRC, or their respective successors and assigns; provided,
however, that no such Person shall exercise any such right of set-off without
the prior written consent of the Program Agent. Each set-off by CRC or any
Liquidity Provider under this Section 8.03 against the Class A Invested Amount
shall reduce the Class A Invested Amount accordingly.
21
<PAGE> 25
SECTION 8.04. Binding Effect; Survival. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, and the provisions of Section 3.02 shall
inure to the benefit of the Liquidity Providers and their respective successors
and assigns; provided, however, that nothing in the foregoing shall be deemed to
authorize any assignment not permitted by Section 6.01. This Agreement shall
create and constitute the continuing obligation of the parties hereto in
accordance with its terms, and shall remain in full force and effect until one
year and one day after the earlier of the date on which all Obligations are paid
in full or the Trust shall terminate in accordance with the Pooling and
Servicing Agreement. The provisions of Section 3.02 shall be continuing and
shall survive any termination of this Agreement.
SECTION 8.05. No Proceedings. Each of CRC, the Seller (on its
own behalf and on behalf of its Affiliates), the Trustee, Citicorp North
America, Inc., individually and as Program Agent, and each Liquidity Provider
hereby agrees that it will not institute against CRC, or join any other Person
in instituting against CRC, any insolvency proceeding (namely, any proceeding of
the type referred to in the definition of "Insolvency Event") so long as any CP
Notes issued by CRC shall be outstanding or there shall not have elapsed one
year plus one day since the last day on which any such CP Notes shall have been
outstanding. The foregoing shall not limit the right of CRC, the Seller, the
Trustee, Citicorp North America, Inc., individually or as the Program Agent, or
any Liquidity Provider to file any claim in or otherwise take any action with
respect to any such insolvency proceeding that was instituted against CRC by any
Person other than CRC, the Seller, the Trustee, Citicorp North America, Inc.,
individually or as the Program Agent, or any Liquidity Provider.
SECTION 8.06. Captions and Cross References. The various
captions (including, without limitation, the table of contents) in this
Agreement are provided solely for convenience of reference and shall not affect
the meaning or interpretation of any provision of this Agreement.
SECTION 8.07. Integration. This Agreement, together with the
other Transaction Documents and the Fee Letter, contains a final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and, together with all the other Transaction Documents and
the Fee Letter, shall constitute the entire agreement among the parties hereto
with respect to the subject matter hereof, superseding all prior oral or written
understandings.
SECTION 8.08. 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, EXCEPT TO THE EXTENT THAT THE PERFECTION OF
THE INTERESTS OF CRC OR
22
<PAGE> 26
THE LIQUIDITY PROVIDERS IN THE TRUST ASSETS IS GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION 8.09. 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 Series
Supplement, 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 8.10. 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 8.11. Waiver of Jury Trial. Each party to this
Agreement 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, the Fee Letter 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), actions of any of the parties hereto and
the Liquidity Providers or any other relationship existing in connection with
this Agreement of any other Transaction Document or the Fee Letter, and agrees
that any such action or proceeding shall be tried before a court and not before
a jury.
SECTION 8.12. 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.
SECTION 8.13. Replacement of Liquidity Providers. The Program
Agent shall have the right, in its sole discretion, to terminate the rights and
obligations of the Liquidity Providers to make the Purchase or fund Increases in
the event that the applicable rating described in the definition of "Eligible
Assignee" shall be downgraded. Such termination shall be effective upon written
notice to such effect delivered by the Program Agent to such Liquidity Provider,
whereupon the Term of such Liquidity
23
<PAGE> 27
Provider's Commitment shall be deemed to have terminated. Upon such termination,
the Liquidity Provider shall cease to have any rights or obligations with
respect to future Increases under this Agreement but shall continue to have the
rights and obligations of a Liquidity Provider with respect to any Increases
funded by it under this Agreement prior to such termination.
SECTION 8.14. Reimbursement of Program Agent. Each Liquidity
Provider will on demand reimburse the Program Agent its Liquidity Provider
Commitment Percentage of any and all reasonable costs and expenses (including,
without limitation, reasonable fees and disbursements of counsel) which may be
incurred in connection with collecting amounts owed with respect to any
Certificate in which such Liquidity Provider purchases Class A Certificate
Interests for which the Program Agent is not promptly reimbursed by the Seller
or otherwise. Should the Program Agent later be reimbursed by the Seller or CRC
for any such amount, the Program Agent shall immediately pay to each Liquidity
Provider its Liquidity Provider Commitment Percentage of such amount.
SECTION 8.15. No Conflict of Interest. The Program Agent and
its Affiliates may accept deposits from, lend money or otherwise extend credit
to, act as trustee under indentures of, and generally engage in any kind of
business with, the Seller and any of its Affiliates and any Person who may do
business with or own securities of the Seller or any of its Affiliates, all as
though this Agreement had not been entered into and without any duty to account
therefor to CRC or any Liquidity Provider.
SECTION 8.16. Withholding Taxes. Each Liquidity Provider
warrants that it is not subject to any taxes, charges, levies or withholdings
with respect to payments under this Agreement that are imposed by means of
withholding by any applicable taxing authority ("Withholding Tax"). Each
Liquidity Provider agrees to provide the Program Agent, from time to time upon
the Program Agent's request, completed and signed copies of any documents that
may be required by any applicable taxing authority to certify such Liquidity
Provider's exemption from Withholding Tax with respect to payments to be made to
such Liquidity Provider under this Agreement. Each Liquidity Provider agrees to
hold the Program Agent and the Seller harmless from any Withholding Tax imposed
due to such Liquidity Provider's failure to establish that it is not subject to
Withholding Tax.
24
<PAGE> 28
IN WITNESS WHEREOF, the parties hereto have caused this
Certificate Purchase Agreement to be duly executed by their respective officers
thereunto duly authorized as of the date first above written.
DELL RECEIVABLES L.P.,
as Seller
by DELL RECEIVABLES GEN. P. CORP,
as its general partner
By /s/ THOMAS J. MEREDITH
--------------------------------------
Name: THOMAS J. MEREDITH
Title: PRESIDENT
2112 Kramer Lane, Suite D
Austin, Texas 78758
Tel: (512) 728-5829
Fax: (512) 728-5986
CORPORATE RECEIVABLES CORPORATION,
as Purchaser
By: Citicorp North America, Inc.,
as Attorney-in-Fact
By/s/ RAYMOND F. DIZON
--------------------------------------
Name: RAYMOND F. DIZON
Title: V. P.
399 Park Avenue
New York, New York 10043
Tel: (212)
Fax: (212)
CITICORP NORTH AMERICA, INC.,
as Program Agent
By/s/ RAYMOND F. DIZON
--------------------------------------
Name: RAYMOND F. DIZON
Title: V. P.
399 Park Avenue
New York, New York 10043
Tel: (212)
Fax: (212)
<PAGE> 29
EXHIBITS
The following Exhibits have been omitted from this filing:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Notice of Purchase
Exhibit C -- Form of Notice of Increase
Exhibit D -- Form of Officer's Certificate
The registrant hereby undertakes to furnish supplementally a copy of any such
Exhibit to the Commission upon request.