exv10w32



 






Exhibit 10.32




FIRST AMENDMENT




          FIRST AMENDMENT (this “Amendment”), dated as of January 5, 2006 to:




          (A) the Facility Agreement dated as of May 20, 2005 (as amended, supplemented or otherwise
modified from time to time, the “Facility Agreement”), between Oracle Technology Company, a
company incorporated in Ireland with company registration number 265683 and having its registered
office at 25/28 North Wall Quay, Dublin 2 (the “Borrower”) and ABN AMRO Bank, N.V., having
its place of business at 540 West Madison Street, Chicago, IL 60661, U.S.A. (the “Lender”
or the “Bank”); and




          (B) the Guaranty dated as of May 20, 2005 (as amended, supplemented or otherwise modified
from time to time, the “Guaranty”), by Oracle Corporation, a Delaware corporation
(“Oracle” and, until the consummation of the Mergers referred to below, the
“Guarantor”) for the benefit of the Bank.




W I T N E S S E T H:




          WHEREAS, the Borrower, a wholly-owned subsidiary of Oracle, has entered into the Facility
Agreement with the Lender;




          WHEREAS, as a condition of the extension of the Term Loan (as defined in the Guaranty), Oracle
has executed the Guaranty, which guarantees all obligations of the Borrower to the Lender in
respect of the Term Loan for the benefit of the Lender;




          WHEREAS, Oracle intends to acquire through a subsidiary all of the issued and outstanding
capital stock of Siebel Systems, Inc., a Delaware corporation (“Siebel”), pursuant to an
Agreement and Plan of Merger dated as of September 12, 2005 among Oracle, Siebel, Ozark Holding
Inc., a wholly-owned subsidiary of Oracle (“New Oracle” and, as of the date hereof, a
“Guarantor”), Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of New
Oracle (“Ozark Merger Sub”), and Sierra Merger Sub Inc., a Delaware corporation and a
wholly owned subsidiary of New Oracle (“Sierra Merger Sub”) (the “Merger
Agreement”);




          WHEREAS, pursuant to the Merger Agreement, Ozark Merger Sub shall be merged with and into
Oracle (the “Oracle Merger”) and Sierra Merger Sub shall be merged with and into Siebel
(the “Siebel Merger” and, together with the Oracle Merger, the “Mergers”);




          WHEREAS, upon completion of the Mergers and the other transactions contemplated by the Merger
Agreement, New Oracle shall (i) own all of the issued and outstanding capital stock of each of
Oracle and Siebel and (ii) be renamed Oracle Corporation;




          WHEREAS, the parties to the Facility Agreement and the Guaranty each wish (i) from the date
hereof until the consummation of the Mergers, to have New Oracle become a “Guarantor” jointly and
severally liable with Oracle under the Guaranty, all upon the terms and subject to the limitations
set forth herein, (ii) from and after the consummation of the Mergers, to have New Oracle become
the sole Guarantor under the Guaranty and to have Oracle released as Guarantor thereunder and (iii)
to amend the Facility Agreement and/or Guaranty (as applicable)





 









 








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to effect the foregoing, and to make certain additional conforming changes in connection
therewith;




          WHEREAS, the Lender is willing to agree to such amendments on the terms and subject to the
conditions set forth herein.




          NOW THEREFORE, in consideration of the premises and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto hereby agree as follows:




          SECTION 1. DEFINITIONS




          Capitalized terms used herein and not otherwise defined shall have their respective meanings
as set forth in the Facility Agreement or the Guaranty, as applicable.




          SECTION 2.  AMENDMENTS TO THE FACILITY AGREEMENT




          2.1 Amendment to Clause 1.1. Clause 1.1 of the Facility Agreement is hereby amended
by adding the following defined terms in the appropriate alphabetical order:





“Amendment” means the First Amendment to this Agreement, dated as of January
5, 2006.




“Guarantor” means (i) initially, Oracle, (ii) from the date of effectiveness
of the Amendment until the consummation of the Mergers, each of Oracle and New
Oracle, jointly and severally (subject to the provisions and limitations set forth
in Clause 29 hereof) and (iii) from and after the consummation of the Mergers, New
Oracle.




“Merger Agreement” means the Agreement and Plan of Merger dated as of
September 12, 2005 among Oracle, Siebel Systems, Inc., a Delaware corporation, New
Oracle, Ozark Merger Sub Inc., a Delaware corporation, and Sierra Merger Sub Inc., a
Delaware corporation, whereby, among other things, Oracle intends to acquire all of
the issued and outstanding capital stock of Siebel Systems, Inc.




“Mergers” means those mergers consummated pursuant to the Merger Agreement,
whereby Ozark Merger Sub Inc. shall be merged with and into Oracle and Sierra Merger
Sub Inc. shall be merged with and into Siebel Systems, Inc.




“Oracle” means Oracle Corporation, a Delaware corporation, to be renamed
upon consummation of the Mergers.




“New Oracle” means Ozark Holding Inc., a Delaware corporation and a wholly
owned subsidiary of Oracle, to be renamed “Oracle Corporation” upon consummation of
the Mergers.



 









 




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          2.2 New Clause 29. The Facility Agreement is hereby amended by adding the following
new Clause 29 in the appropriate numerical order:




          “29. Change in Guarantor





	 	(a)	 	Effective immediately upon the effective date of the Amendment
and without further action by New Oracle or any other Person hereunder, New
Oracle (i) shall become a Guarantor under this Agreement, with the same force
and effect as if originally named as such herein and (ii) hereby agrees to
perform all obligations of the Guarantor under this Agreement, whether in
existence at the time of the effectiveness of the Amendment or arising at any
time thereafter.
	 
	 	(b)	 	Upon consummation of the Mergers, and without further action by
Oracle or any other Person hereunder, Oracle shall cease to be a Guarantor for
the purposes of this Agreement and shall be discharged and released from all
obligations as Guarantor under this Agreement.





          SECTION 3.  AMENDMENTS TO THE GUARANTY




          3.1 Amendment to Annex A. Annex A of the Guaranty is hereby amended by adding the
following defined terms in the appropriate alphabetical order:





“Amendment” means the First Amendment to this Guaranty, dated as of January 5, 2006.




“Guarantor” means (i) initially, Oracle, (ii) from the date of the effectiveness of
the Amendment until the consummation of the Mergers, each of Oracle and New Oracle,
jointly and severally and (iii) from and after the consummation of the Mergers, New
Oracle.




“Merger Agreement” means the Agreement and Plan of Merger dated as of September 12,
2005 among Oracle, Siebel Systems, Inc., a Delaware corporation, New Oracle, Ozark
Merger Sub Inc., a Delaware corporation, and Sierra Merger Sub Inc., a Delaware
corporation, whereby, among other things, Oracle intends to acquire all of the
issued and outstanding capital stock of Siebel Systems, Inc.




“Mergers” means those mergers consummated pursuant to the Merger Agreement, whereby
Ozark Merger Sub Inc. shall be merged with and into Oracle and Sierra Merger Sub
Inc. shall be merged with and into Siebel Systems, Inc.




“Oracle” means Oracle Corporation, a Delaware corporation, to be renamed upon
consummation of the Mergers.




“New Oracle” means Ozark Holding Inc., a Delaware corporation and a wholly owned
subsidiary of Oracle, to be renamed “Oracle Corporation” upon consummation of the
Mergers.



 









 




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          3.2 Amendment to Section 20. The Guaranty is hereby amended by adding the following
new Section 20 in the appropriate numerical order:





     “20. Change in Guarantor. (a) Effective immediately upon the date of the
effectiveness of the Amendment and without further action by New Oracle or any other Person
hereunder, New Oracle (i) shall become a Guarantor under this Guaranty, with the same force
and effect as if originally named as such herein and (ii) hereby agrees to perform all
obligations of the Guarantor under this Guaranty, whether in existence at the time of the
effectiveness of the Amendment or arising at any time thereafter and (b) upon consummation
of the Mergers, and without further action by Oracle or any other Person hereunder, Oracle
shall cease to be a Guarantor for the purposes of this Guaranty and shall be discharged and
released from all obligations as Guarantor under this Guaranty. Notwithstanding the
foregoing, as used in Sections 10 (other than clauses (a), (b), (c) and (d) thereof), 11, 12
and 13, “Guarantor” shall mean only Oracle prior to the consummation of the Mergers.”



          3.3 Amendment to Section 12(b). Section 12(b) of the Guaranty is hereby amended by
(a) deleting the word “and” immediately preceding clause (iv) and replacing it with a comma and (b)
adding the following new clause (v) in the appropriate numerical order:




          “and (v) the transactions contemplated by the Merger Agreement may be consummated.”




          3.4 Amendment to Section 12(e). Section 12(e) of the Guaranty is hereby amended by
deleting it in its entirety and replacing it with the following in lieu thereof:





     “(e) Subsidiary Indebtedness. The Guarantor will not permit any of its
Subsidiaries (other than New Oracle for so long as it shall be a Guarantor hereunder) to
incur or permit to remain outstanding any Covenant Debt other than (i) Debt of a Subsidiary
outstanding on the Effective Date and refinancings, refundings, renewals or extensions
thereof, (ii) Debt owed to the Guarantor or another Subsidiary of the Guarantor, (iii)
commercial paper issued by Oracle and outstanding on the date on which the transactions
contemplated by the Merger Agreement are consummated and (iv) Covenant Debt not referenced
in clauses (i) through (iii) above in an aggregate outstanding principal amount that,
together with any Debt or other obligations secured by Liens referred to in Section
12(a)(xi), shall not exceed the greater of (x) $1,500,000,000 and (y) 10% of Total
Consolidated Tangible Assets determined at such time.”



          SECTION 4.  MISCELLANEOUS




          4.1 Effective Date. This Amendment shall become effective upon the receipt by the
Bank of counterparts hereof duly executed and delivered by Oracle, New Oracle and the Borrower.




          4.2 Limited Effect. Except as expressly amended hereby, the Facility Agreement and
Guaranty shall each continue to be and shall remain in full force and effect in


 









 


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accordance with its terms, and this Amendment shall not constitute the Bank’s consent or
indicate its willingness to consent to any other amendment, modification or waiver of the Facility
Agreement or the Guaranty.




          4.3 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT THAT THE PROVISIONS OF SECTION 2
HEREOF SHALL BE GOVERNED BY IRISH LAW.




          4.4 Counterparts. This Amendment may be executed by the parties hereto in any number
of separate counterparts (including by telecopy) and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.




 









 


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          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their proper and duly authorized officers as of the day and year first above written.




	 	 	 	 	 
	 	ORACLE CORPORATION

 	 
	 	By:    	    /s/ Eric R. Ball
 	 
	 	 	Name:  	Eric R. Ball 	 
	 	 	Title:  	Treasurer 	 
	 
	 	OZARK HOLDING INC.

 	 
	 	By:  	    /s/ Eric R. Ball
 	 
	 	 	Name:  	Eric R. Ball 	 
	 	 	Title:  	Treasurer 	 



 









 


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	 	ORACLE TECHNOLOGY COMPANY

 	 
	 	By:  	    /s/ Daniel Cooperman
 	 
	 	 	Name:  	Daniel Cooperman 	 
	 	 	Title:  	Director 	 



 









 


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	 	ABN AMRO BANK N.V.

 	 
	 	By:  	    /s/ David Carrington
 	 
	 	 	Name:  	David Carrington 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                                  /s/ Frances O’R Logan
 	 
	 	 	Name:  	Frances O’R Logan 	 
	 	 	Title:  	Managing Director