EXHIBIT 10.16
AMENDED AND RESTATED BACKUP FACILITY AGREEMENT
AND AMENDMENT TO OTHER OPERATIVE AGREEMENTS
AMENDED AND RESTATED BACKUP FACILITY AGREEMENT dated as of November
7, 2002, 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, as
Collateral Agent, and as Agent Bank (the "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, the Participation Agreement and certain other Operative Agreements 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)
The Operative Agreements are amended by changing each reference
to "The Chase Manhattan Bank" to "JPMorgan Chase Bank".
(b)
Pursuant to Section 4.2 of the Backup Facility Agreement, the
Banks agree that the current "Expiry Date" of November 7, 2002 shall be, and is
hereby, extended to November 6, 2003, 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.
(c)
The parties agree that notwithstanding anything to the contrary
contained in Section 11.3 of the Participation Agreement,