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 ma
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