EX-4.9 7 l99661aexv4w9.txt EXHIBIT 4.9 EXHIBIT 4.9 GENENCOR INTERNATIONAL, INC. AMENDMENT NO. 5 TO NOTE AGREEMENT As of April 17, 2002 TO EACH OF THE CURRENT NOTEHOLDERS NAMED IN ANNEX 1 HERETO Ladies and Gentlemen: GENENCOR INTERNATIONAL, INC. (hereinafter, the "COMPANY"), together with its successors and assigns, agrees with you as follows: 1. PRELIMINARY STATEMENTS 1.1 NOTE ISSUANCE, ETC. The Company issued and sold S140,000,000 aggregate principal amount of its 6.82% Senior Notes due March 30, 2006 (as may be amended, restated or otherwise modified from time to time, the "NOTES") pursuant to a Note Agreement dated March 28, 1996 and entered into by and among the Company and each of the Purchasers listed in Annex 1 attached thereto (as amended by previously executed Amendment Agreements including Amendment No. 4 to Note Agreement dated as of October l, 2000, and in effect immediately prior to giving effect to the Amendments provided for by this Amendment No. 5 to Note Agreement (this "AMENDMENT AGREEMENT"), the "EXISTING NOTE AGREEMENT", and as amended by this Amendment Agreement, the "NOTE AGREEMENT"). The register for the registration and transfer of the Notes indicates that the Persons named in Annex 1 hereto (collectively, the "CURRENT NOTEHOLDERS") are currently the holders of the entire outstanding principal amount of the Notes. 1.2 FINNSUGAR STARCH ENZYMES U.S., INC. As a condition to the Current Noteholders entering into Amendment No. 2 to Note Agreement dated as of December 31, 1996, Finnsugar Starch Enzymes U.S., Inc. ("FINNSUGAR") executed and delivered an Amended and Restated Guaranty dated December 31, 1996 in favor of each of the Current Noteholders. On December 18, 2000, Finnsugar transferred all of its assets and liabilities to the Company and dissolved. 1.3 ENZYME BIO-SYSTEMS LTD. On February 5, 2002, Enzyme Bio-Systems Ltd. ("ENZYME") became a Material Subsidiary and Enzyme has agreed to guaranty all of the obligations, liabilities and indebtedness of the Company to the Current Noteholders. 2. DEFINED TERMS Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to them in the Note Agreement (as contemplated to be amended hereby). 3. AMENDMENTS Subject to Section 6, the Existing Note Agreement is amended as provided for by this Amendment Agreement in the manner specified in Exhibit A (the "AMENDMENTS"). 4. WAIVERS Subject to Section 6, the Current Noteholders hereby waive certain provisions of the Existing Note Agreement as provided for by this Amendment Agreement in the manner specified in Exhibit B. The waivers are referred to herein as the "WAIVERS" and such Waivers shall not entitle the Company to any future waiver in similar or other circumstances. 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY To induce you to enter into this Amendment Agreement and to consent to the Amendments and Waivers, the Company represents and warrants as follows: 5.1 ORGANIZATION, POWER AND AUTHORITY, ETC. The Company and Enzyme are each corporations duly incorporated and validly existing in good standing under the laws of Delaware and each has all requisite corporate power and authority to enter into and perform its obligations under this Amendment Agreement and the Subsidiary Guaranty to which it is a party. 5.2 LEGAL VALIDITY The execution and delivery of this Amendment Agreement by the Company and the Subsidiary Guaranty by Enzyme and compliance by the Company and Enzyme with their respective obligations hereunder and thereunder: (a) are within the respective corporate powers of the Company and Enzyme; and (b) are legal and do not conflict with, result in any breach of, constitute a default under, or result in the creation of any Lien upon any Property of the Company or Enzyme under the provisions of: (i) any charter instrument or bylaw to which the Company or Enzyme is a party or by which the Company or Enzyme or any of their Property may be bound; (ii) any order, judgment, decree or ruling of any court, arbitrator or governmental authority applicable to either the Company, Enzyme or their respective Property; or (iii) any agreement or instrument to which the Company or Enzyme is a party or by which the Company or Enzyme or any of their Property may be bound or any statute or other rule or regulation of any governmental authority applicable to the Company, Enzyme or their respective Property, except where such conflict, breach or default could not reasonably be expected to have a Material Adverse Effect. This Amendment Agreement has been duly authorized by all necessary action on the part of the Company, has been executed and delivered by a duly authorized officer of the Company, -2- and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except that enforceability may be limited by applicable bankruptcy, reorganization, arrangement, insolvency, moratorium, or other similar laws affecting the enforceability of creditors' rights generally and subject to the availability of equitable remedies. The Subsidiary Guaranty has been duly authorized by all necessary action on the part of Enzyme, has been executed and delivered by a duly authorized officer of Enzyme, and constitutes a legal, valid and binding obligation of Enzyme, enforceable in accordance with its terms, except that enforceability may be limited by applicable bankruptcy, reorganization, arrangement, insolvency, moratorium, or other similar laws affecting the enforceability of creditors' rights generally and subject to the availability of equitable remedies. 5.3 NO DEFAULTS. After giving, effect to the Waivers set forth in Section 4, no event has occurred and no condition exists that, upon the execution and delivery of this Amendment Agreement, would constitute a Default or an Event of Default. 5.4 DISSOLUTION OF FINNSUGAR STARCH ENZYMES U.S., INC. On December 18, 2000, Finnsugar transferred all of its assets and liabilities to the Company and dissolved. 6. EFFECTIVENESS OF AMENDMENTS AND WAIVERS The Amendments and Waivers shall become effective on the date first written above when and only when (a) the Company and the Required Holders shall have executed and delivered this Amendment Agreement; (b) the Company shall have caused Enzyme to execute and deliver a Subsidiary Guaranty substantially in the form of Exhibit C hereto, accompanied by a Secretary's certificate substantially in the form of Exhibit D hereto, and an opinion of counsel to Enzyme regarding the authorization, execution and delivery of such Subsidiary Guaranty, and its enforceability, which certificate and opinion shall be satisfactory in all respects to the Required Holders; and (c) the Company shall have delivered to the Current Noteholders documentation evidencing the warranty and representation contained in Section 5.4 hereof. Such documentation shall be satisfactory in all respects to the Required Holders. 7. EXPENSES Whether or not the Amendments and Waivers become effective, the Company will promptly (and in any event within thirty days of receiving any statement or invoice therefor) pay all fees, expenses and costs relating to this Amendment Agreement, including, but not limited to, the reasonable fees of your special counsel, Bingham Dana LLP, incurred in connection with the preparation, negotiation and delivery of the Amendment Agreement and any other documents -3- related thereto. Nothing in this Section shall limit the Company's obligations pursuant to Section 11B of the Existing Note Agreement. 8. MISCELLANEOUS 8.1 PART OF EXISTING NOTE AGREEMENT, FUTURE REFERENCES, ETC. This Amendment Agreement shall be construed in connection with and as a part of the Existing Note Agreement and, except as expressly amended by this Amendment Agreement, all terms, conditions and covenants contained in the Existing Note Agreement are hereby ratified and shall be and remain in full force and effect. Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this Amendment Agreement may refer to the Existing Note Agreement without making specific reference to this Amendment Agreement, but nevertheless all such references shall include this Amendment Agreement unless the context otherwise requires. 8.2 COUNTERPARTS This Amendment Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. 8.3 GOVERNING LAW THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN NEW YORK. [Remainder of page intentionally blank. Next page is signature page.] -4- If you are in agreement with the foregoing, please so indicate by signing the acceptance below on the accompanying counterpart of this Amendment Agreement and returning it to the Company whereupon it will become a binding agreement among each of you and the Company. GENENCOR INTERNATIONAL, INC. BY: /s/ Raymond J. Land --------------------------------- NAME: Raymond J. Land TITLE: Senior Vice President and Chief Financial Officer [Signature Page to Amendment No. 5] The foregoing Amendment Agreement is hereby accepted as of the date first above written. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA BY: /s/ Kevin J. Kraska --------------------------------- NAME: Kevin J. Kraska TITLE: Vice President [Signature Page to Amendment No. 5] THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY BY: /s/ David A. Barras --------------------------------- NAME: David A. Barras TITLE: Its Authorized Representative [Signature Page to Amendment No. 5] ALLMERICA FINANCIAL LIFE INSURANCE AND ANNUITY COMPANY BY: /s/ Michael F. Lannigan --------------------------------- NAME: Michael F. Lannigan TITLE: Assistant Treasurer FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY BY: Michael F. Lannigan --------------------------------- NAME: Michael F. Lannigan TITLE: Assistant Treasurer THE HANOVER INSURANCE COMPANY BY: /s/ William K. Fain --------------------------------- NAME: William K. Fain TITLE: Assistant Vice President CITIZENS INSURANCE COMPANY OF AMERICA BY: /s/ William K. Fain --------------------------------- NAME: William K. Fain TITLE: Assistant Vice President [Signature Page to Amendment No. 5] CONNECTICUT GENERAL LIFE INSURANCE COMPANY BY: CIGNA INVESTMENTS, INC. BY: /s/ Robert W. Eccles --------------------------------- NAME: Robert W. Eccles TITLE: Managing Director CONNECTICUT GENERAL LIFE INSURANCE COMPANY ON BEHALF OF ONE OR MORE SEPARATE ACCOUNTS BY: CIGNA INVESTMENTS, INC. BY: /s/ Robert W. Eccles --------------------------------- NAME: Robert W. Eccles TITLE: Managing Director LIFE INSURANCE COMPANY OF AMERICA BY: CIGNA INVESTMENTS, INC. BY: /s/ Robert W. Eccles --------------------------------- NAME: Robert W. Eccles TITLE: Managing Director [Signature Page to Amendment No. 5] UNITED OF OMAHA LIFE INSURANCE COMPANY BY: /s/ Edwin H. Garrison, Jr. --------------------------------- NAME: Edwin H. Garrison, Jr. TITLE: First Vice President COMPANION LIFE INSURANCE COMPANY BY: /s/ Edwin H. Garrison, Jr. -------------------------------- NAME: Edwin H. Garrison, Jr. TITLE: Authorized Signer BY: -------------------------------- NAME: TITLE: [Signature Page to Amendment No. 5] METROPOLITAN LIFE INSURANCE COMPANY BY: /s/ Scott Inglis --------------------------------- NAME: Scott Inglis TITLE: Managing Director [Signature Page to Amendment No. 5] PACIFIC LIFE INSURANCE COMPANY BY: /s/ Diane W. Dales --------------------------------- NAME: Diane W. Dales TITLE: Assistant Vice President BY: /s/ Peter S. Fiek --------------------------------- NAME: Peter S. Fiek TITLE: Assistant Secretary [Signature Page to Amendment No. 5] JEFFERSON PILOT FINANCIAL INSURANCE COMPANY BY: /s/ Robert E. Whalen, II -------------------------------- NAME: Robert E. Whalen, II TITLE: Vice President [Signature Page to Amendment No. 5] CUDD & CO., AS NOMINEE FOR THE CANADA LIFE ASSURANCE COMPANY BY: /s/ Peter Coccia --------------------------------- NAME: Peter Coccia TITLE: Partner CUDD & CO., AS NOMINEE FOR THE CANADA LIFE ASSURANCE COMPANY BY: /s/ Peter Coccia --------------------------------- NAME: Peter Coccia TITLE: Partner [Signature Page to Amendment No. 5] THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA BY: /s/ Ellen I. Whittaker --------------------------------- NAME: Ellen I. Whittaker TITLE: Director [Signature Page to Amendment No. 5] WOODMEN ACCIDENT AND LIFE COMPANY BY: /s/ Victor Weber --------------------------------- NAME: Victor Weber TITLE: Director, Securities Investments, Chief Investment Officer and Assistant Treasurer [Signature Page to Amendment No. 5] ANNEX 1 CURRENT NOTEHOLDERS The Prudential Insurance Company of America The Northwestern Mutual Life Insurance Company Allmerica Financial Life Insurance and Annuity Company First Allmerica Financial Life Insurance Company The Hanover Insurance Company Citizens Insurance Company of America Connecticut General Life Insurance Company Connecticut General Life Insurance Company, on behalf of one or more separate accounts Life Insurance Company of North America United of Omaha Life Insurance Company Companion Life Insurance Company Metropolitan Life Insurance Company Pacific Life Insurance Company Jefferson Pilot Financial Insurance Company Canada Life Assurance Company of America Canada Life Insurance Company of America The Guardian Life Insurance Company of America Woodmen Accident and Life Company EXHIBIT A AMENDMENTS (a) AMENDMENT OF PARAGRAPH 5H(ii) Paragraph 5H(ii) of the Existing Note Agreement is hereby amended and restated in its entirety to read as follows: (ii) Subsidiary Guaranties. On or before June 1, 2002, Enzyme Bio-Systems Ltd. will execute and deliver to each of the holders of Notes a duly authorized Subsidiary Guaranty, a Secretary's Certificate substantially in the form of Exhibit D to Amendment No. 5 to Note Agreement dated April 17, 2002, and an opinion of counsel to Enzyme Bio-Systems Ltd. regarding the authorization, execution and delivery of such Subsidiary Guaranty, and its enforceability, which opinion shall be satisfactory in all respects to the Required Holders. Each Person that becomes a Material Subsidiary and is organized under the laws of the United States, any state thereof or the District of Columbia will execute and deliver to each of the holders of the Notes, within thirty (30) days after becoming a Material Subsidiary (or on the Release Date, if such date is later), a duly authorized Joinder Agreement, a Secretary's Certificate substantially in the form of Exhibit F hereto, and an opinion of counsel to such Material Subsidiary regarding the authorization, execution and delivery of such Joinder Agreement, and its enforceability, which opinion shall be satisfactory in all respects to the Required Holders. Notwithstanding the foregoing, the requirements of this paragraph 5H(ii) shall not apply to Genencor International Indiana, Inc., a Subsidiary organized under the laws of Indiana, so long as such Subsidiary is not required to enter into a guaranty under or in respect of the Revolving Credit Agreement. (b) AMENDMENT OF PARAGRAPH 10B Paragraph 10B, Definition of Subsidiary Guarantor. The definition of Subsidiary Guarantor is hereby amended and restated to read as follows: "Subsidiary Guarantor" means and includes, at any time, Enzyme Bio-Systems Ltd., a corporation organized under the laws of Delaware, and any other Subsidiary that is a guarantor at such time under the Subsidiary Guaranty. EXHIBIT B WAIVERS The Current Noteholders hereby waive any Event of Default under (i) Section 7A(vii) of the Existing Note Agreement due solely to the Company's failure to comply with Section 5H(ii) by failing to provide an appropriate Joinder Agreement from Enzyme in accordance with the terms of Section 5H(ii) and (ii) Section 7A(viii) due solely to the Subsidiary Guaranty of Finnsugar ceasing to be in full force and effect. These waivers shall be limited precisely as written, and shall not extend to any other Event of Default under any other provision of the Existing Note Agreement, as amended by this Amendment Agreement, during any other period.