Exhibit 10.21
ISSUING AND PAYING
AGENCY AGREEMENT
This Agreement, dated as of
March 23, 2005, is by and between Oracle Corporation, a
Delaware corporation (the “Issuer" ) and JPMorgan
Chase Bank, National Association ( “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 (or a duly authorized committee thereof) authorizing
the issuance of Notes under each program established pursuant to
this Agreement and a certificate of incumbency, 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 incumbency certificates of the
Issuer, JPMorgan shall be entitled to rely on the last incumbency
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 with all due care
in accordance with JPMorgan’s customary 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, except for JPMorgan’s own negligence, willful
misconduct or bad faith. 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
with all due care 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 bill
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
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.
2
(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 certified or registered mail to such payee or to such
other person as is specified in such instructions to receive the
Certificated Note. The Is
|
