Unassociated Document


    
      

    

    
      Exhibit
10.45

      


      


      THIRD
AMENDMENT TO CREDIT AGREEMENT

      


      


      This
THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as
of September 25, 2009, among SYMYX TECHNOLOGIES, INC., a Delaware corporation
(the “Borrower”), each
lender from time to time party thereto (collectively, the “Lenders” and
individually, a “Lender”), and BANK OF
AMERICA, N.A., as
Administrative Agent (the “Administrative
Agent”) and as L/C Issuer.

      


      RECITALS

      


      A.           The
Borrower, the Lenders, the Administrative Agent, and Bank of America, N.A. as
L/C Issuer, are party to that certain Credit Agreement dated as of September 28,
2007, as amended by that certain Amendment to Credit Agreement dated as of March
11, 2009, and that Second Amendment to Credit Agreement dated as of July 31,
2009 (as so amended, the “Credit Agreement”),
pursuant to which the Administrative Agent and the Lenders have extended certain
credit facilities to the Borrower for its benefit and for the benefit of its
Subsidiaries.

      


      B.          
 The Borrower has requested that the Administrative Agent and the Lenders
agree to certain amendments to the Credit Agreement, and the Lenders have agreed
to such request, subject to the terms and conditions of this
Amendment.

      


      NOW,
THEREFORE, for valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:

      


      1.          
  Defined
Terms.  Unless otherwise defined herein, capitalized terms used
herein shall have the meanings, if any, assigned to such terms in the Credit
Agreement.  As used herein, “Amendment Documents”
means this Amendment, the Guarantor Consent, the Credit Agreement (as amended by
this Amendment), and each certificate and other document executed and delivered
by the Borrower or any Guarantor pursuant to Section 5
hereof.

      


      2.           
 Interpretation.  The
rules of interpretation set forth in Sections 1.02, 1.03, 1.04, 1.05, and 1.06 of the Credit
Agreement shall be applicable to this Amendment and are incorporated herein by
this reference.

      


      3.            
Amendments to Credit
Agreement.  Subject to the terms and conditions hereof, and
with effect from and after the Effective Date, the Credit Agreement shall be
amended as follows:

      


      
      

      (a)         
  Section
1.01 of the Credit Agreement shall be amended, at the definition “Applicable Rate”, by
deleting the table contained therein and inserting in its place the
following:


      
        
           


        

        
          1

          
            

          

        

        
           


        

      

      


      
        	
                Applicable
      Rate

              
	
                Pricing

                Level

              	
                Consolidated

                Leverage
      Ratio

              	
                Commitment
      Fee

              	
                Eurodollar

                Rate
      +/

                Letters
      of

                Credit

              	
                Base
      Rate

                +

              
	
                1

              	
                <1.00

              	
                0.375%

              	
                2.25%

              	
                0.75%

              
	
                2

              	
                ≥1.00:1.00
      but < 1.50:1.00

              	
                0.375%

              	
                2.50%

              	
                1.00%

              
	
                3

              	
                ≥1.50:1.00

              	
                0.375%

              	
                2.75%

              	
                1.25%

              


      

      


      (b)           Section 1.01 of the
Credit Agreement shall be further amended, at the definition “Maturity Date”, by
amending and restating such definition to read in full as follows:

      
 

      “Maturity Date” means
March 1, 2010.

      


      4.            
Representations and
Warranties.  Borrower hereby represents and warrants to the
Administrative Agent and the Lenders as follows:

      


      (a)           
No Default has occurred and is continuing.

      


      (b)           The
execution, delivery and performance by the Borrower and each Guarantor of the
Amendment Documents have been duly authorized by all necessary corporate and
other action and do not and will not require any registration with, consent or
approval of, or notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable.

      


      (c)           After
giving effect to this Amendment, all representations and warranties of the
Borrower contained in Article V of the
Credit Agreement are (i) in the case of representations and warranties that are
qualified as to materiality, true and correct, and (ii) in the case of
representations and warranties that are not qualified as to materiality, true
and correct in all material respects, in each case on and as of the Effective
Date, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct or true
and correct in all material respects, as the case may be, as of such earlier
date; provided
that the representations and warranties contained in Section 5.05 shall be
deemed to refer to the most recent financial statements furnished pursuant to
subsections (a)
and (b) of
Section
6.01.

      


      (d)           Borrower
is entering into this Amendment on the basis of its own investigation and for
its own reasons, without reliance upon the Administrative Agent, the Lenders or
any other Person.

      


      5.            
Effective
Date.

      


      (a)           This
Amendment will become effective when each of the following conditions precedent
has been satisfied (the “Effective
Date”):


      
        
           


        

        
          2

          
            

          

        

        
           


        

      


      (i)          
 The Administrative Agent shall have received from the Borrower and the
Required Lenders a duly executed original (or, if elected by the Administrative
Agent, an executed facsimile copy) counterpart to this Amendment.

      


      (ii)           The
Administrative Agent shall have received from each Guarantor a guarantor consent
and reaffirmation in the form attached hereto as Annex I (the “Guarantor Consent”),
signed by Responsible Officers of the applicable Guarantor.

      


      (iii)          The
Administrative Agent shall have received such documents and certifications as
the Administrative Agent may reasonably require to evidence that the Borrower
and each Guarantor is duly organized or formed validly existing and in good
standing under the law of its jurisdiction of organization, and that the
Borrower and each Guarantor is in good standing and qualified to engage in
business in each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification, except to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.

      


      (iv)          The
Borrower shall have paid to the Administrative Agent all reasonable costs and
expenses of counsel to the Administrative Agent to the extent invoiced prior to
the Effective Date.

      


      (v)           The
Administrative Agent shall have received, in form and substance satisfactory to
it, such additional approvals, consents, opinions, documents and other
information as the Administrative Agent shall request.

      


      (b)           For
purposes of determining compliance with the conditions specified in this Section 5, each
Lender that has executed this Amendment and delivered it to the Administrative
Agent shall be deemed to have consented to, approved or accepted, or to be
satisfied with, each document or other matter either sent, or made available for
inspection, by the Administrative Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to such Lender.

      


      (c)           From
and after the Effective Date, the Credit Agreement is amended as set forth
herein.  Except as expressly amended pursuant hereto, the Credit
Agreement shall remain unchanged and in full force and effect and is hereby
ratified and confirmed in all respects.

      


      (d)           The
Administrative Agent will notify the Borrower and the Lenders of the occurrence
of the Effective Date.

      


      6.            
Reservation of
Rights.  Borrower acknowledges and agrees that neither the
execution nor the delivery by the Administrative Agent and the Lenders of this
Amendment, shall be deemed to create a course of dealing or otherwise obligate
the Administrative Agent or the Lenders to execute similar amendments or waivers
under the same or similar circumstances in the future.


      
        
           


        

        
          3

          
            

          

        

        
           


        

      


      7.            
Miscellaneous.

      


      (a)           This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and thereto and their respective successors and assigns.  No third
party beneficiaries are intended in connection with this Amendment.

      


      (b)           THIS
AMENDMENT IS SUBJECT TO THE PROVISIONS OF SECTIONS 10.14 AND
10.15 OF THE
CREDIT AGREEMENT RELATING TO GOVERNING LAW, VENUE, AND WAIVER OF RIGHT TO TRIAL
BY JURY, THE PROVISIONS OF WHICH ARE BY THIS REFERENCE INCORPORATED HEREIN IN
FULL.

      


      (c)           This
Amendment may be executed in any number of counterparts, each of which shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument.  Transmission of signatures of any party by
facsimile shall for all purposes be deemed the delivery of original, executed
counterparts thereof and the Administrative Agent is hereby authorized to make
sufficient photocopies thereof to assemble complete counterparty
documents.

      


      (d)         
 This Amendment, together with the other Amendment Documents and the Credit
Agreement, contain the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein and therein.  This Amendment
supersedes all prior drafts and communications with respect
thereto.  This Amendment may not be amended except in accordance with
the provisions of Section 10.01 of the
Credit Agreement.

      


      (e)           
If any term or provision of this Amendment shall be deemed prohibited by or
invalid under any applicable law, such provision shall be invalidated without
affecting the remaining provisions of this Amendment or the Credit Agreement,
respectively.

      


      (f)          
 The Borrower covenants to pay to or reimburse the Administrative Agent,
upon demand, for all costs and expenses incurred in connection with the
development, preparation, negotiation, execution and delivery of this Amendment
and the other Amendment Documents.

      


      (g)           Each
of this Amendment, the First Amendment to Subsidiary Security Agreement and the
Guarantor Consent shall constitute a “Loan Document” under
and as defined in the Credit Agreement.

      


      [Remainder of this page intentionally
left blank]


      
        
           


        

        
          4

          
            

          

        

        
           


        

      


      IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.

      


      
        	 
      	
                SYMYX
      TECHNOLOGIES, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Richard Rosenthal

              
	 
      	 
      	 
      
	 
      	
                Name: 
      

              	
                Richard Rosenthal

              
	 
      	 
      	 
      
	 
      	
                Title:

              	
                SVP
Finance

              


      


      
        
           


        

        
           


          
            

          

        

        
           


        

      

      


      
        	 
      	
                BANK OF AMERICA, N.A.,
      as

              
	 
      	
                Administrative
      Agent

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ William J. Flynt Jr.

              
	 
      	 
      	 
      
	 
      	
                Name: 
      

              	
                William J. Flynt Jr

              
	 
      	 
      	 
      
	 
      	
                Title:

              	
                Vice
President

              


      


      
        
           


        

        
           


          
            

          

        

        
           


        

      

      


      
        	 
      	
                BANK OF AMERICA, N.A.,
      as a Lender and L/C Issuer

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ William J. Flynt Jr.

              
	 
      	 
      	 
      
	 
      	
                Name: 
      

              	
                William J. Flynt Jr.

              
	 
      	 
      	 
      
	 
      	
                Title:

              	
                Vice
President

              


      


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      ANNEX
I

      to Third
Amendment to

      Credit
Agreement

      


      GUARANTOR
CONSENT

      


      Each of
the undersigned, in its capacity as a Guarantor, acknowledges that its consent
to the foregoing Third Amendment to Credit Agreement (the “Amendment”) is not
required, but each of the undersigned nevertheless does hereby consent to the
foregoing Amendment and to the documents and agreements referred to
therein.  Nothing herein shall in any way limit any of the terms or
provisions of the Guaranty of the undersigned or the Amendment Documents
executed by the undersigned in the Administrative Agent’s and the Lenders’
favor, or any other Loan Document executed by the undersigned (as the same may
be amended from time to time), all of which are hereby ratified and affirmed in
all respects.  This Consent may be executed in
counterparts.

      


      


      
        	 
      	
                SYMYX SOLUTIONS, INC.,
      as a Guarantor

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Richard Rosenthal

              
	 
      	 
      	 
      
	 
      	
                Name: 
      

              	
                Richard Rosenthal

              
	 
      	 
      	 
      
	 
      	
                Title:

              	
                SVP Finance

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                SYMYX TECHNOLOGIES
      INTERNATIONAL, INC., as a Guarantor

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Richard Rosenthal

              
	 
      	 
      	 
      
	 
      	
                Name: 
      

              	
                Richard Rosenthal

              
	 
      	 
      	 
      
	 
      	
                Title:

              	
                Treasure