EXHIBIT 10.16
AMENDED AND RESTATED BACKUP FACILITY AGREEMENT
AMENDED AND RESTATED BACKUP FACILITY AGREEMENT dated as of November
6, 2003, among DNA FINANCE CORP. (the "Borrower"), the BANKS party hereto (the
"Banks"), the INVESTORS party hereto (the "Investors"), JP MORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank), as CP Administrative Agent and as
Agent Bank (the "Agent"), UNION BANK OF CALIFORNIA, N.A., as Collateral Agent,
VACAVILLE REAL ESTATE TRUST 2001 ("Lessor"), and GENENTECH, INC. ("Lessee" and
"Guarantor").
W I T N E S S E T H :
WHEREAS, Borrower, Agent and the Banks hereto have heretofore
entered into a Backup Facility Agreement dated as of October 26, 2001 (as
amended prior to the Restatement Effective Date referred to below, the "Backup
Facility Agreement"), and such parties, the Investors, Lessor, Lessee and
certain other Persons have entered into the Participation Agreement referred to
therein (as amended prior to the Restatement Effective Date referred to below,
the "Participation Agreement"), and certain other Operative Agreements (as such
term is defined in accordance with Section 1 below);
WHEREAS, at the date hereof, there are no Facility Loans outstanding
under the Backup Facility Agreement; and
WHEREAS, the parties hereto desire to amend the Backup Facility
Agreement and the Participation Agreement as set forth herein and to restate the
Backup Facility Agreement in its entirety to read as set forth in the Backup
Facility Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1.
Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in Annex A to the
Participation Agreement shall have the meaning assigned to such term in such
Annex A. Each reference to "hereof", "hereunder", "herein" and "hereby" and each
other similar reference and each reference to "this Agreement" and each other
similar reference contained in the Backup Facility Agreement shall, after the
Restatement Effective Date, refer to the Backup Facility Agreement as amended
and restated hereby.
SECTION 2.
Amendments
Upon the Restatement Effective Date:
(a)
Pursuant to Section 4.2 of the Backup Facility Agreement, the
Banks agree that the current "Expiry Date" of November 6, 2003 shall be, and is
hereby, extended to November 4, 2004, and each undersigned Bank shall remain a
party to the Backup Facility Agreement as a
Bank with an obligation to make (i) Revolving Facility Loans prior to its new
Expiry Date in an aggregate principal amount not to exceed the amount of the
Commitment set forth below, and (ii) a Term Loan in the amount of such
Commitment on the terms set forth in the Backup Facility Agreement, in each case
as such amounts may be adjusted from time to time as provided in the Backup
Facility Agreement.
(b)
The Banks agree that the Backup Facility Agreement and the
Participation Agreement are each amended, as of the Restatement Effective Date,
by replacing the Commitment amounts on the signature pages thereof with the
Commitments shown on Schedule 1 attached hereto.
SECTION