exv10w31



 



Exhibit
10.31





FIRST AMENDMENT




          FIRST AMENDMENT (this “Amendment”), dated as of January 5, 2006 to the 364-Day
Revolving Credit Agreement dated as of March 18, 2005 (as amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among Oracle Corporation
(“Oracle” and, until the consummation of the Mergers referred to below, the
“Borrower”), the banks, financial institutions, other institutional lenders (the
“Lenders”) thereto, Wachovia Bank, National Association (“Wachovia”) as
Administrative Agent (in such capacity, the “Agent” and collectively, the “Original
Parties”), Credit Suisse, New York branch (“CSFB”) and ABN AMRO Bank N.V., as
Syndication Agents (in such capacity, the “Syndication Agents”) and Bank of America, N.A.
and Deutsche Bank Securities, Inc., as documentation agents (in such capacity, the
“Documentation Agents”) and Wachovia Capital Markets LLC and CSFB, as Joint Lead Arrangers
and Joint Bookrunners.




W I T N E S S E T H:




          WHEREAS, Oracle, the Lenders, and the Agent are parties to the Credit Agreement, pursuant to
which the Lenders have agreed to make extensions of credit to Oracle;




          WHEREAS, Oracle intends to acquire through a subsidiary (the “Acquisition”) all of the
issued and outstanding capital stock (the “Shares”) 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, upon consummation of the Mergers, the “Borrower”), Ozark 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 Original Parties to the Credit Agreement wish to have New Oracle succeed to the
interests of Oracle as the Borrower under the Credit Agreement and assume all of the rights and
obligations thereto upon the consummation of the Mergers;




          WHEREAS, the Original Parties requested certain amendments to the Credit Agreement in respect
of the completion of the Mergers and the other transactions contemplated by the Merger Agreement;
and




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




 









 





	 
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          NOW THEREFORE, in consideration of the premises and for other good and valuable consideration,
the receipt of which is hereby acknowledged, Oracle, New Oracle, the Lenders and the Agent 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 Credit Agreement.




          SECTION 2.  AMENDMENTS AND CONSENT




          2.1 Amendment to Section 1.01. Section 1.01 of the Credit Agreement is hereby amended
by adding the following defined terms in the appropriate alphabetical order:





“Borrower” means (i) initially and until the consummation of the Mergers,
Oracle and (ii) from and after the consummation of the Mergers, New Oracle.




“Guaranteed Obligations” shall have the meaning set forth in Section 9.01 of
this Agreement.




“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.



          2.2 Amendment to Article II. Article II of the Credit Agreement is hereby amended by
adding the following new Section 2.19 in the appropriate numerical order:




          “Section 2.19. Change in Borrower. Effective immediately upon the consummation
of the Mergers and without further action by New Oracle or any other Person hereunder, (a)
New Oracle (i) shall become the Borrower under this Agreement, with the same force and
effect as if originally named as such herein and (ii) hereby accepts all of the rights and
assumes and agrees to perform all obligations of the Borrower under this Agreement and the
Notes, whether in existence at the time of the Mergers or arising at any time thereafter and
(b) Oracle (i) shall cease to be the Borrower

 









 









	 
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for the purposes of this Agreement, (ii) shall be discharged and released from all
obligations and covenants under this Agreement and the Notes and (iii) shall no longer be
entitled to request or borrow Advances hereunder; provided that New Oracle shall
deliver the documentation referenced in Section 3.01(e) of this Agreement as it relates to
itself as the new Borrower. It is understood that, upon consummation of the Mergers, New
Oracle will be renamed “Oracle Corporation.” The parties hereto agree that if the Mergers
and the transactions set forth in the Merger Agreement are not consummated, New Oracle shall
not become the Borrower under this Agreement and Oracle shall remain the Borrower under this
Agreement.




          2.3 Amendment to Section 5.02(a). Section 5.02(a)(xi) of the Credit Agreement is
hereby amended by deleting the references to Section 5.02(e)(iii) contained therein and by
replacing them with references to Section 5.02(e)(iv).




          2.4 Amendment to Section 5.02(b). Section 5.02(b) of the Credit Agreement 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.”




          2.5 Amendment to Section 5.02(e). Section 5.02(e) of the Credit Agreement is hereby
amended by deleting it in its entirety and replacing it with the following in lieu thereof:




    “(e) Subsidiary Indebtedness. The Borrower will not permit any of its
Subsidiaries (other than New Oracle for so long as it shall be a guarantor under Article IX
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 Borrower or another Subsidiary of the Borrower,
(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
5.02(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.”




          2.6 New Article IX (New Oracle Guarantee). The Credit Agreement is hereby amended by
adding the following new Article IX in its appropriate numerical order:




          “ARTICLE IX




          NEW ORACLE GUARANTEE




          Section 9.01. Guarantee.




 









 








	 
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(a) New Oracle hereby unconditionally and irrevocably guarantees to the Lenders and
their respective successors, endorsees, transferees and assigns, the prompt and complete
payment and performance by the Borrower of its obligations under this Agreement (hereinafter
the “Guaranteed Obligations”).




      (b) The guarantee contained in this Article IX shall remain in full force and effect
until the earlier of the time at which (i) all the Guaranteed Obligations shall have been
satisfied by payment in full and the Commitments shall be terminated and (ii) New Oracle
becomes the Borrower under this Agreement, notwithstanding that from time to time during the
term of this Agreement the Borrower may be free from any obligations.




      (c) New Oracle shall be subrogated to all rights of the Lenders in respect of any
amounts paid by New Oracle pursuant to the provisions of the guarantee contained in this
Article IX; provided, however, that New Oracle shall be entitled to enforce,
or to receive any payments arising out of or based upon, such right of subrogation only
after the principal of and interest on the Loans and all other amounts owed to the Agent and
the Lenders hereunder have been paid in full.




      Section 9.02
Guarantee Absolute and Unconditional. New Oracle waives any and
all notice of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance by any Lender upon the guarantee contained in
this Article IX or acceptance of the guarantee contained in this Article IX; the Guaranteed
Obligations, and any of those obligations, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon
the guarantee contained in this Article IX. New Oracle understands and agrees that the
guarantee contained in this Article IX shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or enforceability of
this Agreement, any of the Guaranteed Obligations at any time or from time to time held by
any Lender, (b) any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the Borrower or any
other Person against any Lender, or (c) any other circumstance whatsoever (with or without
notice to or knowledge of the Borrower) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Guaranteed Obligations,
or of New Oracle under the guarantee contained in this Article IX, in bankruptcy or in any
other instance.




      Section 9.03.
Reinstatement. The guarantee contained in this Article IX shall
continue to be effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any of the Guaranteed Obligations is rescinded or must otherwise be
restored or returned by any Lender upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Borrower, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, the Borrower or any
substantial part of its property, or otherwise, all as though such payments had not been
made.”




 









 








	 
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          SECTION 3.  MISCELLANEOUS




          3.1 Effective Date. This Amendment shall become effective upon the receipt by the
Agent of counterparts hereof duly executed and delivered by Oracle, New Oracle and each of the
Lenders under the Credit Agreement.




          3.2 Representations and Warranties. Oracle and New Oracle each represents and
warrants to each Lender that as of the date hereof and after giving effect hereto: (a) this
Amendment constitutes the legal, valid and binding obligation of Oracle and New Oracle, as
applicable, enforceable against each of them in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, fraudulent conveyances, reorganization,
moratorium or similar laws affecting creditors’ rights generally, by general equitable principles
(whether enforcement is sought by proceedings in equity or at law) and by an implied covenant of
good faith and fair dealing; (b) the representations and warranties made by the Borrower in the
Credit Agreement are true and correct in all material respects on and as of the date hereof, or in
the case of New Oracle as Borrower, immediately after the consummation of the Mergers (except, in
each case, to the extent that such representations and warranties are expressly stated to relate to
an earlier date, in which case such representations shall have been true and correct in all
material respects on and as of such earlier date); and (c) no Default or Event of Default shall
have occurred and be continuing as of such date.




          3.3 Limited Effect. Except as expressly amended hereby, the Credit Agreement shall
continue to be and shall remain in full force and effect in accordance with its terms, and this
Amendment shall not constitute the Lenders’ consent or indicate their willingness to consent to any
other amendment, modification or waiver of the Credit Agreement.




          3.4 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.




          3.5 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 	 
	 




 









 





 7




	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL

ASSOCIATION, as Administrative Agent and as a

Lender

 	 
	 	By:  	   /s/ Mark B. Felker
 	 
	 	 	Name:  	Mark B. Felker 	 
	 	 	Title:  	Managing Director 	 
	 




 









 





 8




	 	 	 	 	 
	 	CREDIT SUISSE, New York branch, as

Syndication Agent and as a Lender

 	 
	 	By:  	   /s/ Vanessa Gomez
 	 
	 	 	Name:  	Vanessa Gomez 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                                                 /s/ Karim Blasetti
 	 
	 	 	Name:  	Karim Blasetti 	 
	 	 	Title:  	Associate 	 
	 




 









 





 9




	 	 	 	 	 
	 	ABN AMRO BANK N.V., as Syndication Agent and as a

Lender

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




 









 





 10




	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as
Documentation Agent and
 as a Lender

 	 
	 	By:  	   /s/ Aileen B. Supeña
 	 
	 	 	Name:  	Aileen B. Supeña 	 
	 	 	Title:  	Vice President 	 
	 




 










 






11




	 	 	 	 	 
	 	DEUTSCHE BANK SECURITIES, INC., as 

Documentation Agent

 	 
	 	By:  	    /s/ David G. Dickinson Jr.
 	 
	 	 	Name:  	David G. Dickinson Jr. 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	           /s/ Yvonne Preil
 	 
	 	 	Name:  	Yvonne Preil 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



12




	 	 	 	 	 
	 	DEUTSCHE BANK AG, New York Branch, as a

Lender

 	 
	 	By:  	    /s/ David G. Dickinson Jr.
 	 
	 	 	Name:  	David G. Dickinson Jr. 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                                  /s/ Yvonne Preil
 	 
	 	 	Name:  	Yvonne Preil 	 
	 	 	Title:  	Vice President 	 
	 




 









 





13




	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION, 

as Managing Agent and as a Lender

 	 
	 	By:  	    /s/ David Wagstaff
 	 
	 	 	Name:  	David Wagstaff 	 
	 	 	Title:  	Senior Vice President 	 
	 




 









 





14




	 	 	 	 	 
	 	KEYBANK, NATIONAL ASSOCIATION, as

Managing Agent and as a Lender

 	 
	 	By:  	


    
/s/ Thomas A. Crandell
 	 
	 	 	Name:  	Thomas A. Crandell 	 
	 	 	Title:  	Senior Vice President 	 
	 




 









 





15




	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD., as 

Managing Agent and as a Lender

 	 
	 	By:  	    /s/ Bertram H. Tang
 	 
	 	 	Name:  	Bertram H. Tang 	 
	 	 	Title:  	Senior Vice President & Team Leader 	 
	 




 










 






16




	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

 as Managing Agent and as a Lender

 	 
	 	By:  	    /s/ Margarita Chichioco
 	 
	 	 	Name:  	Margarita Chichioco 	 
	 	 	Title:  	Vice President 	 
	 




 









 





17




	 	 	 	 	 
	 	CITICORP USA, INC., as Managing Agent and as a Lender

 	 
	 	By:  	    /s/ Avrum Spiegel
 	 
	 	 	Name:  	Avrum Spiegel                                                   	 
	 	 	Title:  	Vice President 	 
	 




 









 





18




	 	 	 	 	 
	 	BNP PARIBAS, as Managing Agent and as a Lender

 	 
	 	By:  	   /s/ Pierre-Nicholas Rogers
 	 
	 	 	Name:  	Pierre-Nicholas Rogers 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                                                  /s/ Jamie Dillon
 	 
	 	 	Name:  	Jamie Dillon 	 
	 	 	Title:  	Director 	 
	 




 









 





19




	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as a Lender

 	 
	 	By:  	   /s/ William P. Rindfuss
 	 
	 	 	Name:  	William P. Rindfuss 	 
	 	 	Title:  	Vice President 	 
	 




 









 





20





	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI, LTD., New York 

Branch, as Managing Agent and as a Lender

 	 
	 	By:  	   /s/ Christopher J. DeLauro
 	 
	 	 	Name:  	Christopher J. DeLauro 	 
	 	 	Title:  	Assistant Vice President 	 
	 




 










 






21




	 	 	 	 	 
	 	AUSTRALIAN AND NEW ZEALAND

BANKING GROUP LIMITED, as a Lender

 	 
	 	By:  	     /s/ R. Scott McInnis
 	 
	 	 	Name:  	R. Scott McInnis 	 
	 	 	Title:  	General Manager, Americas 	 



 









 






	 	 	 	 	 



22




	 	 	 	 	 
	 	SOCIETE GENERALE, as a Lender

 	 
	 	By:  	     /s/ Mary Brickley
 	 
	 	 	Name:  	Mary Brickley 	 
	 	 	Title:  	Director 	 



 









 






	 	 	 	 	 



23




	 	 	 	 	 
	 	LLOYDS TSB BANK PLC, as a Lender

 	 
	 	By:  	     /s/ Windsor Davies
 	 
	 	 	Name:  	Windsor Davies 	 
	 	 	Title:  	Director, Corporate Banking, USA 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                    /s/ Deborah Carlson
 	 
	 	 	Name:  	Deborah Carlson 	 
	 	 	Title:  	VP & Manager, Business Development,
Corporate Banking, USA 	 



 









 






	 	 	 	 	 



24




	 	 	 	 	 
	 	

UNION BANK OF CALIFORNIA, N.A., as 

Managing Agent and as a Lender

 	 
	 	By:  	     /s/ Allan B. Miner
 	 
	 	 	Name:  	Allan B. Miner 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



25




	 	 	 	 	 
	 	ROYAL BANK OF CANADA, as a Lender

 	 
	 	By:  	     /s/ Mark S. Gronich
 	 
	 	 	Name:  	Mark S. Gronich 	 
	 	 	Title:  	Authorized Signatory 	 
	 




 










 






26




	 	 	 	 	 	 	 
	 	 	BANCA DI ROMA SPA, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Richard G. Dietz	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Richard G. Dietz

Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Luca Balestra	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Luca Balestra

Title: SVP and General Manager
	 	 






 









 





27




	 	 	 	 	 	 	 
	 	 	U.S. BANK, NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Timothy D. Myers	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Timothy D. Myers

Title: Vice President
	 	 






 









 





28




	 	 	 	 	 	 	 
	 	 	MERRILL LYNCH BANK USA, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	      /s/ Louis Alder	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Louis Alder

Title: Director
	 	 






 









 





29




	 	 	 	 	 	 	 
	 	 	LEHMAN BROTHERS BANK, FSB, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Janine M. Shugan	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Janine M. Shugan

Title: Authorized Signatory
	 	 






 









 





30




	 	 	 	 	 	 	 
	 	 	SHINSEI BANK, LIMITED, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Masayoshi Asano	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Masayoshi Asano

Title: General Manager