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Exhibit 4.3
AMENDMENT NO. 1
DATED AS OF APRIL 20, 2001
TO
$32,000,000 THREE YEAR
CREDIT AGREEMENT DATED AS OF JANUARY 31, 2001
AMONG
GENENCOR INTERNATIONAL, INC.,
THE LENDERS PARTY THERETO
AND
THE CHASE MANHATTAN BANK
AS ADMINISTRATIVE AGENT
PREPARED BY:
XXXXXXXXX & XXXXXXX LLP
COUNSEL TO THE SYNDICATION AGENT
XXXXXXX X. XXXXX, ESQ.
0000 XXXXX XXXXXX
XXXXXXXXX, XXX XXXX 00000
TELEPHONE: (000) 000-0000
FAX: (000) 000-0000
E-MAIL: mdwyer@underberg-
xxxxxxx.xxx
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AMENDMENT NO. 1 TO CREDIT AGREEMENT
-----------------------------------
AGREEMENT dated as of April 20, 2001 among GENENCOR INTERNATIONAL, INC.
(the "BORROWER"), the Lenders signatory to this Amendment (each a "LENDER") and
THE CHASE MANHATTAN BANK, as Administrative Agent for the Lenders (in such
capacity, together with its successors in such capacity, the "ADMINISTRATIVE
AGENT").
R E C I T A L S
R.1 The Borrower, The Chase Manhattan Bank, individually and as
Administrative Agent, ABN Amro Bank N.V. and The Bank of New York have entered
into a $32,000,000 Three Year Credit Agreement, dated as of January 31, 2001
(the "CREDIT AGREEMENT").
R.2 The Borrower desires to amend the Credit Agreement to increase the
aggregate amount of the Commitments to $40,000,000.
R.3 The parties wish to add Credit Suisse First Boston as a Lender and
to amend the Credit Agreement on the terms and conditions set forth below.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. Except as otherwise set forth herein, as used in this
Amendment, the terms defined in the Credit Agreement shall have the meanings
assigned to them in the Credit Agreement.
2. AMENDMENTS. The Credit Agreement is hereby amended as set forth
below:
2.1 DEFINITIONS. The following definitions are added to
SECTION 1.01 of the Credit Agreement:
"AMENDMENT NO. 1" shall mean Amendment No. 1 dated as
of April 20, 2001 to Credit Agreement dated as of
January 31, 2001.
"LENDERS" means the Persons listed on SCHEDULE 2.01,
in the form attached to Amendment No. 1 as EXHIBIT
2.1, and any other Person that shall have become a
party hereto pursuant to an Assignment and
Acceptance, other than such Person that ceases to be
a party hereto pursuant to an Assignment and
Acceptance.
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2.2 DEFINITIONS - COMMITMENT. The definition of Commitment in
SECTION 1.01 is amended to read as follows:
"COMMITMENT" means, with respect to each Lender, the
commitment of such Lender to make Loans hereunder,
expressed in dollars, as such commitment may be (a)
reduced from time to time pursuant to SECTION 2.06
and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant
to SECTION 9.04. The amount of each Lender's
Commitment as of the date of Amendment No. 1 is set
forth on SCHEDULE 2.01, which Schedule is amended to
read as set forth in EXHIBIT 2.2 attached to
Amendment No. 1, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its
Commitment, as applicable. The aggregate amount of
the Lenders' Commitments as of the date of Amendment
No. 1 is $40,000,000.
2.3 AMENDMENTS. CLAUSE (vii) is added to SECTION 9.02(b),
which shall read as follows:
(vii) amend the provisions of SECTION 9.04(h) except
as provided therein;
2.4 SPECIAL PURPOSE VEHICLES. SUBPARAGRAPH (h) is added to
SECTION 9.04, which shall read as follows:
"(h) Notwithstanding anything to the contrary
contained herein, any Lender (a "GRANTING LENDER")
may grant to special purpose funding vehicles (each
an "SPC") of such Granting Lender, identified as such
in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the
option to provide all or any part of any Loan that
such Granting Lender would otherwise be obligated to
make pursuant to this Agreement, provided that (i)
nothing herein shall constitute a commitment by any
SPC to make any Loan, (ii) if an SPC elects not to
exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the
terms hereof, and (iii) except as expressly set forth
herein, the rights of any such SPC shall be
derivative of the rights of the Granting Lender, and
each SPC shall be subject to all of the restrictions
upon the Granting Lender herein contained. Each SPC
shall be conclusively presumed to have made
arrangements with its Granting Lender for the
exercise by the Granting Lender of voting and other
rights hereunder in a manner which is acceptable to
the SPC, and the Administrative Agent, the Lenders
and the Borrower and each other party shall be
entitled to rely upon and deal solely
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with the Granting Lender with respect to Loans made
by or through its SPC and with respect to all other
matters related to this Agreement. The making of a
Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if,
such Loan were made by the Granting Lender. Each
party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment
obligation under this Agreement (all liability for
which shall remain with the related Granting Lender).
In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the
date that is one year and one day after the payment
in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting
against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or
similar proceedings under the laws of the United
States of America or any state thereof. In addition,
notwithstanding anything to the contrary contained in
this SECTION 9.04, each SPC may, at any time, without
regard to the requirements of SECTION 9.04(b), (i)
with notice to, but without the prior written consent
of, the Borrower or the Administrative Agent, and
without paying any processing fee therefor, assign
all or a portion of its interests in any Loans to its
Granting Lender (or to any other SPC of such Granting
Lender) or to any financial institutions (consented
to by the Borrower and the Administrative Agent)
providing liquidity and/or credit support to or for
the account of such SPC to support the funding or
maintenance of Loans made by such SPC (but nothing
contained herein shall be construed in derogation of
the obligation of the Granting Lender to make Loans),
and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of
any surety, guarantee or credit or liquidity
enhancement to such SPC. This SECTION 9.04(h) may not
be amended without the written consent of all SPC's
then designated to the Administrative Agent in
accordance with the foregoing provisions of this
Section."
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to the Lenders that:
3.1 CORPORATE POWER AND AUTHORITY: NO CONFLICTS. The
execution, delivery and performance by the Borrower of this Amendment have been
duly authorized by all necessary corporate action and do not and will not: (a)
require any consent or approval of its shareholders, which has not been
obtained; (b) contravene its charter or by-laws, as amended to date; (c) violate
any provision of, or require any filing,
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registration, consent or approval under, any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award presently in effect having
applicability to the Borrower or any of its Subsidiaries or Affiliates; (d)
result in a breach of or constitute a default or require any consent that has
not been obtained under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which the Borrower is a party or by which it
or its properties may be bound or affected; (e) result in, or require, the
creation or imposition of any Lien, upon or with respect to any of the
properties now owned or hereafter acquired by the Borrower and its Subsidiaries;
or (f) cause the Borrower (or any Subsidiary or Affiliate, as the case may be),
to be in default under any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or any such indenture, agreement,
lease or instrument.
3.2 LEGALLY ENFORCEABLE AGREEMENT. This Amendment, and the
Credit Agreement as amended hereby, are the legal, valid and binding obligations
of the Borrower enforceable against the Borrower in accordance with their
respective terms, except to the extent that such enforcement might be limited by
applicable bankruptcy, insolvency or other similar laws affecting creditors'
rights generally.
3.3 NO DEFAULT. On and as of the date of this Amendment, and
after giving effect to this Amendment, no event has occurred and is continuing
which constitutes a Default or Event of Default.
3.4 REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained in the Credit Agreement are true and correct as of the date
of this Amendment as if fully set forth herein and made on and as of the date of
this Amendment. The Borrower has heretofore furnished to Credit Suisse First
Boston its consolidated balance sheet and statements of income, stockholders'
equity and cash flows as of and for the fiscal year ended December 31, 2000,
reported on by PricewaterhouseCoopers LLP, independent public accountants. Such
financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its
Subsidiaries as of such date and for such period in accordance with GAAP.
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3.5 MATERIAL ADVERSE CHANGE. Since December 31, 1999, there
has been no material adverse change in the condition (financial or otherwise),
business, operations or prospects of the Borrower and its Subsidiaries, taken as
a whole.
4. EFFECTIVENESS. This Amendment shall be of no force or effect unless
and until the date on which all of the following conditions are met:
4.1 COUNTERPARTS. The Borrower and the Administrative Agent
have each received counterparts of this Amendment duly executed by the Borrower,
the Administrative Agent, and all of the Lenders.
4.2 RESOLUTIONS. The Administrative Agent shall have received
certified copies of the resolutions of the board of directors of the Borrower,
in form and content reasonably satisfactory to the Administrative Agent,
authorizing the execution, delivery and performance of this Amendment.
5. CREDIT SUISSE/OUTSTANDING BORROWINGS. Upon this Amendment becoming
effective, Credit Suisse First Boston shall become a Lender and shall have all
of the rights, duties and obligations of a Lender, and it shall make such Loans
to the Borrower as may be necessary so that all Borrowings outstanding
immediately prior to the execution of this Amendment are held by all Lenders
ratably in accordance with their respective Commitments, after giving effect to
this Amendment.
6. CHASE'S EXPENSES. Borrower agrees to pay The Chase Manhattan Bank
("CHASE") for all costs, expenses and charges (including, without limitation,
fees and charges of external legal counsel for Chase and costs allocated by its
internal legal department) incurred by Chase in connection with the negotiation,
preparation and execution of this Amendment and other documents executed in
connection herewith.
7. MISCELLANEOUS. Except as expressly provided in this Amendment, the
Credit Agreement shall remain unchanged and in full force and effect, except
that each reference in the Credit Agreement, and in any agreements, certificates
and notices simultaneously herewith or hereafter executed under or pursuant to
the Credit Agreement, to the "Credit Agreement", "this Agreement", "hereof",
"herein" and similar terms referring to the Credit Agreement, shall be deemed to
refer to the Credit Agreement as amended by this Amendment.
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This Amendment shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed in such state, without regard to conflict of laws principles.
The section headings in this Amendment are inserted for convenience
only and shall not be a part of this instrument.
This Amendment may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signature thereto and
hereto were upon the same instrument.
SIGNATURE PAGES S-1 to S-5 TO FOLLOW.
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S-1
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the date first above written.
GENENCOR INTERNATIONAL, INC.
By /s/ Xxxxxxx X. Land
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Name: Xxxxxxx X. Land
Title: Senior Vice President
Chief Financial Officer
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S-2
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent
By /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice President
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S-3
BANKS:
ABN AMRO BANK N.V.
By /s/ Xxxxxx Noique
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Name: Xxxxxx Noique
Title: Vice President
By /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Group Vice President
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S-4
BANKS:
THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
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S-5
BANKS:
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Managing Director
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EXHIBIT 2.2
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SCHEDULE 2.01
COMMITMENTS
Lender Commitment
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The Chase Manhattan Bank $13,333,333.34
ABN Amro Bank N.V. 12,000,000.00
The Bank of New York 6,666,666.66
Credit Suisse First Boston 8,000,000.00
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40,000,000.00
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