Exhibit 10.5
AMENDMENT NO. 1 TO SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO THE SECURITY AGREEMENT (this "Amendment") is made
as of July 11, 2003 by and between MERISANT COMPANY 2, SARL, a limited liability
company organized and existing under the laws of Switzerland (the "Grantor"),
and MERISANT COMPANY, a Delaware corporation (the "Secured Party") under that
certain Security Agreement dated as of December 22, 2000 by and among the
Grantor and the Secured Party (the "Security Agreement"). Defined terms used
herein and not otherwise defined herein shall have the meaning given to them in
the Security Agreement.
WITNESSETH
WHEREAS, the Grantor and the Secured Party are parties to the Security
Agreement; and
WHEREAS, the Grantor and the Secured Party have agreed to amend the
Security Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
have agreed to the following amendments to the Security Agreement:
1. AMENDMENTS.
1.1. Section 1 of the Security Agreement is amended (i) to delete the
definitions of "Administrative Agent", "Arrangers", "Consent and
Second Amendment", "Credit Agreement", "Guarantee & Collateral
Agreement", "Lenders" and "Syndication Agent", (ii) to delete the
phrase "dated _______" now appearing in the definition of "Assignment
and Assumption Agreement" and to substitute the following therefor:
"December 22, 2000", (iii) to delete the phrase "dated December __,
2000" now appearing in the definition of "SwissCo Intercompany Note"
and to substitute the following therefor: "dated December 22, 2000",
and (iv) to insert the following new definitions alphabetically
therein:
"AMENDMENT NO. 1 EFFECTIVE DATE" MEANS JULY 11, 2003.
" CREDIT AGREEMENT" MEANS THAT CERTAIN CREDIT AGREEMENT, DATED
AS OF JULY 11, 2003, BY AND AMONG THE SECURED PARTY, AS BORROWER,
TABLETOP HOLDINGS, INC., THE FINANCIAL INSTITUTIONS AND OTHER ENTITIES
FROM TIME TO TIME PARTIES THERETO AS LENDERS (THE "LENDERS"), CREDIT
SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT (THE "ADMINISTRATIVE
AGENT"), AND CREDIT SUISSE FIRST BOSTON, AS SOLE ARRANGER AND BOOK
MANAGER, AS AMENDED, MODIFIED, RENEWED, EXTENDED, SUBSTITUTED,
RESTRUCTURED, REPLACED, SUPPLEMENTED OR RESTATED, IN WHOLE OR IN PART
AND WITHOUT LIMITATION AS TO AMOUNT, TERMS, CONDITIONS OR COVENANTS.
"MATERIAL INTELLECTUAL PROPERTY" MEANS ALL TRADEMARKS, SUBJECT
AGREEMENTS AND SUBJECT INTANGIBLES OWNED BY OR LICENSED TO A GRANTOR
WHICH IS MATERIAL TO ITS BUSINESS.
"MERISANT SECURITY AGREEMENT" MEANS THAT CERTAIN SECURITY
AGREEMENT, DATED AS OF JULY 11, 2003, BY AND AMONG TABLETOP HOLDINGS,
INC., THE SECURED PARTY AND CERTAIN OTHER SUBSIDIARIES OF THE SECURED
PARTY, AS GRANTORS, AND THE ADMINISTRATIVE AGENT, AS AMENDED,
MODIFIED, RENEWED, EXTENDED, SUBSTITUTED, RESTRUCTURED, REPLACED,
SUPPLEMENTED OR RESTATED, IN WHOLE OR IN PART AND WITHOUT LIMITATION
AS TO AMOUNT, TERMS, CONDITIONS OR COVENANTS.
1.2. Each reference to the term "Guarantee and Collateral Agreement" now
appearing in the Security Agreement is deleted and the following is
substituted therefor: "Merisant Security Agreement".
1.3. Section 3 of the Security Agreement is amended to delete the phrase
"those jurisdictions recited in Clause 9(F)(ii) of the Consent and
Second Amendment" now appearing therein and to substitute the
following therefor: "France, Germany, United Kingdom, Italy, Benelux,
Mexico and Australia".
1.4. Section 5(d) of the Security Agreement is deleted in its entirety, and
the following is substituted therefor:
(d) GRANTOR HEREBY REPRESENTS AND WARRANTS THAT:
(i) TITLE; NO OTHER LIENS. EXCEPT FOR THE LIEN GRANTED TO THE
SECURED PARTY PURSUANT TO THIS AGREEMENT AND THE OTHER LIENS
PERMITTED TO EXIST ON THE COLLATERAL UNDER THE CREDIT
AGREEMENT, THE GRANTOR HAS RIGHTS IN AND POWER TO TRANSFER EACH
ITEM OF COLLATERAL IN WHICH A LIEN IS GRANTED BY IT HEREUNDER,
FREE AND CLEAR OF ANY AND ALL LIENS. FOR THE AVOIDANCE OF
DOUBT, IT IS UNDERSTOOD AND AGREED THAT THE GRANTOR MAY, AS
PART OF ITS BUSINESS, GRANT LICENSES TO THIRD PARTIES TO USE
COLLATERAL OWNED OR DEVELOPED BY THE GRANTOR. FOR PURPOSES OF
THIS AGREEMENT AND THE SWISSCO INTERCOMPANY NOTE, SUCH
LICENSING ACTIVITY SHALL NOT CONSTITUTE A "LIEN" ON SUCH
INTELLECTUAL PROPERTY.
(ii) PERFECTION AND PRIORITY. THE FILINGS HAVING BEEN DULY MADE IN
THE LOCATIONS SPECIFIED IN SECTION 3, THE SECURITY INTEREST
GRANTED PURSUANT TO THIS AGREEMENT CONSTITUTES A VALID AND
CONTINUING PERFECTED SECURITY INTEREST IN FAVOR OF THE SECURED
PARTY IN THE COLLATERAL. SUCH SECURITY INTEREST IS PRIOR TO ALL
OTHER LIENS ON THE COLLATERAL EXCEPT FOR LIENS WHICH HAVE
PRIORITY OVER THE SECURED PARTY'S LIEN AS PERMITTED UNDER
SECTION 6.3 OF THE CREDIT AGREEMENT.
(iii) JURISDICTION OF INCORPORATION; CHIEF EXECUTIVE OFFICE.
(a) WITHIN THE FIVE-YEAR PERIOD PRECEDING THE AMENDMENT
NO. 1 EFFECTIVE DATE THE GRANTOR HAS NOT HAD, OR OPERATED IN
ANY JURISDICTION
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UNDER, ANY TRADE NAME, FICTITIOUS NAME OR OTHER NAME OTHER THAN
ITS LEGAL NAME.
(b) ON THE AMENDMENT NO. 1 EFFECTIVE DATE THE GRANTOR'S
JURISDICTION OF ORGANIZATION AND THE LOCATION OF THE GRANTOR'S
CHIEF EXECUTIVE OFFICE OR SOLE PLACE OF BUSINESS ARE SPECIFIED
IN THE PREAMBLE TO THIS AGREEMENT, AND THE GRANTOR HAS NO
ORGANIZATIONAL IDENTIFICATION NUMBER.
(iv) INTELLECTUAL PROPERTY.
(a) SCHEDULE A (AS SUPPLEMENTED AS OF THE AMENDMENT
NO. 1 EFFECTIVE DATE) LISTS ALL MATERIAL INTELLECTUAL PROPERTY
OF THE GRANTOR ON THE AMENDMENT NO. 1 EFFECTIVE DATE,
SEPARATELY IDENTIFYING THAT OWNED BY THE GRANTOR AND THAT
LICENSED TO THE GRANTOR. THE MATERIAL INTELLECTUAL PROPERTY SET
FORTH ON SCHEDULE A FOR THE GRANTOR CONSTITUTES ALL OF THE
INTELLECTUAL PROPERTY RIGHTS NECESSARY FOR THE GRANTOR TO
CONDUCT ITS BUSINESS.
(b) ON THE DATE HEREOF, ALL MATERIAL INTELLECTUAL
PROPERTY OWNED BY THE GRANTOR IS VALID, SUBSISTING, UNEXPIRED
AND ENFORCEABLE, HAS NOT BEEN ADJUDGED INVALID AND HAS NOT BEEN
ABANDONED, OPPOSED OR CANCELLED OR OTHERWISE CHALLENGED AND THE
USE THEREOF IN THE BUSINESS OF THE GRANTOR DOES NOT INFRINGE
THE INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON.
(c) EXCEPT AS SET FORTH IN SCHEDULE A (AS SUPPLEMENTED
AS OF THE AMENDMENT NO. 1 EFFECTIVE DATE), ON THE AMENDMENT NO.
1 EFFECTIVE DATE, NONE OF THE MATERIAL INTELLECTUAL PROPERTY
OWNED BY THE GRANTOR IS THE SUBJECT OF ANY LICENSING OR
FRANCHISE AGREEMENT PURSUANT TO WHICH THE GRANTOR IS THE
LICENSOR OR FRANCHISOR.
(d) NO HOLDING, DECISION OR JUDGMENT HAS BEEN RENDERED
BY ANY GOVERNMENTAL AUTHORITY THAT WOULD LIMIT, CANCEL OR
QUESTION THE VALIDITY OR ENFORCEABILITY OF, OR THE GRANTOR'S
RIGHTS IN, ANY MATERIAL INTELLECTUAL PROPERTY.
(e) NO ACTION OR PROCEEDING SEEKING TO LIMIT, CANCEL OR
QUESTION THE VALIDITY OF ANY MATERIAL INTELLECTUAL PROPERTY
OWNED BY THE GRANTOR OR THE GRANTOR'S OWNERSHIP INTEREST
THEREIN IS ON THE DATE HEREOF PENDING OR, TO THE KNOWLEDGE OF
THE GRANTOR, THREATENED. THERE ARE NO CLAIMS, JUDGMENTS OR
SETTLEMENTS TO BE PAID BY THE GRANTOR RELATING TO THE MATERIAL
INTELLECTUAL PROPERTY NOR ANY INJUNCTIONS ISSUED LIMITING OR
BARRING USE OF ANY MATERIAL INTELLECTUAL PROPERTY.
1.5. Section 5(e) of the Security Agreement is deleted in its entirety, and
the following is substituted therefor:
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(e) GRANTOR HEREBY FURTHER REPRESENTS AND WARRANTS THAT:
(i) CORPORATE EXISTENCE; COMPLIANCE WITH LAW. THE GRANTOR (a) IS
DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE
LAWS OF THE JURISDICTION OF ITS ORGANIZATION, (b) HAS THE
CORPORATE POWER AND AUTHORITY, AND THE LEGAL RIGHT, TO OWN AND
OPERATE ITS PROPERTY, TO LEASE THE PROPERTY IT OPERATES AS
LESSEE AND TO CONDUCT THE BUSINESS IN WHICH IT IS CURRENTLY
ENGAGED, (c) IS DULY QUALIFIED AS A FOREIGN CORPORATION AND IN
GOOD STANDING UNDER THE LAWS OF EACH JURISDICTION WHERE ITS
OWNERSHIP, LEASE OR OPERATION OF PROPERTY OR THE CONDUCT OF ITS
BUSINESS REQUIRES SUCH QUALIFICATION EXCEPT TO THE EXTENT THE
FAILURE TO SO QUALIFY COULD NOT, IN THE AGGREGATE, REASONABLY
BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, (d) IS IN
COMPLIANCE WITH ALL REQUIREMENTS OF LAW EXCEPT TO THE EXTENT
THAT THE FAILURE TO COMPLY THEREWITH WOULD NOT, IN THE
AGGREGATE, REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT, (e) IS IN COMPLIANCE WITH ITS CONSTITUENT DOCUMENTS AND
(f) HAS ALL NECESSARY PERMITS FROM OR BY, HAS MADE ALL
NECESSARY FILINGS WITH, AND HAS GIVEN ALL NECESSARY NOTICES TO,
EACH GOVERNMENTAL AUTHORITY HAVING JURISDICTION, TO THE EXTENT
REQUIRED FOR SUCH OWNERSHIP, OPERATION, LEASE AND CONDUCT,
EXCEPT FOR PERMITS, FILINGS OR NOTICES THE FAILURE TO OBTAIN OR
MAKE WOULD NOT, IN THE AGGREGATE, REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT.
(ii) CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. THE
GRANTOR HAS THE CORPORATE POWER AND AUTHORITY, AND THE LEGAL
RIGHT, TO MAKE, DELIVER AND PERFORM THIS AGREEMENT AND THE
SWISSCO INTERCOMPANY NOTE. THE GRANTOR HAS TAKEN ALL NECESSARY
CORPORATE ACTION TO AUTHORIZE THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND THE SWISSCO INTERCOMPANY
NOTE. NO CONSENT OR AUTHORIZATION OF, FILING WITH, NOTICE TO OR
OTHER ACT BY OR IN RESPECT OF, ANY GOVERNMENTAL AUTHORITY OR
ANY OTHER PERSON IS REQUIRED IN CONNECTION WITH THE EXTENSIONS
OF CREDIT HEREUNDER OR WITH THE EXECUTION, DELIVERY,
PERFORMANCE, VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR
THE SWISSCO INTERCOMPANY NOTE, EXCEPT (a) CONSENTS,
AUTHORIZATIONS, FILINGS AND NOTICES WHICH HAVE BEEN OBTAINED OR
MADE AND ARE IN FULL FORCE AND EFFECT AND (b) THE FILINGS
REFERRED TO IN SECTION 5(d). THIS AGREEMENT AND THE SWISSCO
INTERCOMPANY NOTE HAVE BEEN DULY EXECUTED AND DELIVERED ON
BEHALF OF THE GRANTOR. EACH OF THIS AGREEMENT AND THE SWISSCO
INTERCOMPANY NOTE CONSTITUTES A LEGAL, VALID AND BINDING
OBLIGATION OF THE GRANTOR, ENFORCEABLE AGAINST THE GRANTOR IN
ACCORDANCE WITH ITS TERMS, EXCEPT AS ENFORCEABILITY MAY BE
LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR SIMILAR LAWS AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND BY GENERAL EQUITABLE PRINCIPLES
(WHETHER ENFORCEMENT IS SOUGHT BY PROCEEDINGS IN EQUITY OR AT
LAW).
(iii) NO LEGAL BAR. THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT AND THE SWISSCO INTERCOMPANY NOTE WILL NOT VIOLATE
ANY REQUIREMENT OF LAW OR ANY CONTRACTUAL OBLIGATION OF THE
GRANTOR AND WILL NOT RESULT IN,
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OR REQUIRE, THE CREATION OR IMPOSITION OF ANY LIEN ON ANY OF
THEIR RESPECTIVE PROPERTIES OR REVENUES PURSUANT TO ANY
REQUIREMENT OF LAW OR ANY SUCH CONTRACTUAL OBLIGATION (OTHER
THAN THE LIENS CREATED HEREUNDER). NO REQUIREMENT OF LAW OR
CONTRACTUAL OBLIGATION APPLICABLE TO THE GRANTOR WOULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT. NO
PERFORMANCE OF AN CONTRACTUAL OBLIGATION BY THE GRANTOR, EITHER
UNCONDITIONALLY OR UPON THE HAPPENING OF AN EVENT, WOULD RESULT
IN THE CREATION OF A LIEN (OTHER THAN A LIEN PERMITTED UNDER
SECTION 5(d)) ON THE PROPERTY OR ASSETS THEREOF.
(iv) LITIGATION. NO LITIGATION, INVESTIGATION OR PROCEEDING OF OR
BEFORE ANY ARBITRATOR OR GOVERNMENTAL AUTHORITY IS PENDING OR,
TO THE BEST KNOWLEDGE OF THE GRANTOR, THREATENED BY OR AGAINST
THE GRANTOR OR AGAINST ANY OF ITS OR REVENUES (a) WITH RESPECT
THE AGREEMENT OR THE SWISSCO INTERCOMPANY NOTE OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR (b) THAT WOULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
1.6. Section 6 of the Security Agreement is deleted in its entirety, and
the following is substituted therefor:
SECTION 6. COVENANTS. THE GRANTOR HEREBY COVENANTS AND AGREES THAT:
(a) DELIVERY OF INSTRUMENTS AND CHATTEL PAPER. IF ANY MATERIAL AMOUNT
PAYABLE UNDER OR IN CONNECTION WITH ANY OF THE COLLATERAL OWNED BY THE
GRANTOR SHALL BE OR BECOME EVIDENCED BY AN INSTRUMENT OR CHATTEL
PAPER, THE GRANTOR SHALL PROMPTLY DELIVER SUCH INSTRUMENT OR CHATTEL
PAPER TO THE SECURED PARTY, DULY INDORSED IN A MANNER REASONABLY
SATISFACTORY TO THE SECURED PARTY, OR, IF CONSENTED TO BY THE SECURED
PARTY, SHALL XXXX ALL SUCH INSTRUMENTS AND CHATTEL PAPER WITH THE
FOLLOWING LEGEND: "THIS WRITING AND THE OBLIGATIONS EVIDENCED OR
SECURED HEREBY ARE SUBJECT TO THE SECURITY INTEREST OF MERISANT
COMPANY, AS SECURED PARTY".
(b) PAYMENT OF OBLIGATIONS. THE GRANTOR WILL PAY AND DISCHARGE OR
OTHERWISE SATISFY AT OR BEFORE MATURITY OR BEFORE THEY BECOME
DELINQUENT, AS THE CASE MAY BE, ALL MATERIAL TAXES, ASSESSMENTS AND
GOVERNMENTAL CHARGES OR LEVIES IMPOSED UPON THE COLLATERAL OR IN
RESPECT OF INCOME OR PROFITS THEREFROM, AS WELL AS ALL CLAIMS OF ANY
KIND (INCLUDING CLAIMS FOR LABOR, MATERIALS AND SUPPLIES) AGAINST OR
WITH RESPECT TO THE COLLATERAL, EXCEPT THAT NO SUCH CHARGE NEED BE
PAID IF THE AMOUNT OR VALIDITY THEREOF IS CURRENTLY BEING CONTESTED IN
GOOD FAITH BY APPROPRIATE PROCEEDINGS, RESERVES IN CONFORMITY WITH
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AS IN EFFECT FROM TIME TO
TIME WITH RESPECT THERETO HAVE BEEN PROVIDED ON THE BOOKS OF THE
GRANTOR AND SUCH PROCEEDINGS COULD NOT REASONABLY BE EXPECTED TO
RESULT IN THE SALE, FORFEITURE OR LOSS OF ANY MATERIAL PORTION OF THE
COLLATERAL OR ANY INTEREST THEREIN OR OTHERWISE RESULT IN A MATERIAL
ADVERSE EFFECT.
(c) MAINTENANCE OF PERFECTED SECURITY INTEREST; FURTHER DOCUMENTATION.
(i) THE GRANTOR WILL MAINTAIN THE SECURITY INTEREST CREATED BY THIS
AGREEMENT AS A PERFECTED SECURITY INTEREST HAVING AT LEAST THE
PRIORITY DESCRIBED IN SECTION 5(d) AND SHALL DEFEND SUCH
SECURITY INTEREST AGAINST THE CLAIMS AND
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DEMANDS OF ALL PERSONS (OTHER THAN PERSONS HOLDING LIENS
EXPRESSLY PERMITTED BY SECTION 5(d)).
(ii) THE GRANTOR WILL FURNISH TO THE SECURED PARTY FROM TIME TO TIME
STATEMENTS AND SCHEDULES FURTHER IDENTIFYING THE COLLATERAL AND
SUCH OTHER REPORTS IN CONNECTION WITH THE COLLATERAL AS THE
SECURED PARTY MAY REASONABLY REQUEST, ALL IN REASONABLE DETAIL.
(iii) AT ANY TIME AND FROM TIME TO TIME, UPON THE WRITTEN REQUEST OF
THE SECURED PARTY, AND AT THE SOLE EXPENSE OF THE GRANTOR, THE
GRANTOR WILL PROMPTLY AND DULY EXECUTE AND DELIVER, AND HAVE
RECORDED, SUCH FURTHER INSTRUMENTS AND DOCUMENTS AND TAKE SUCH
FURTHER ACTION AS THE SECURED PARTY MAY REASONABLY REQUEST FOR
THE PURPOSE OF OBTAINING OR PRESERVING THE FULL BENEFITS OF
THIS AGREEMENT AND OF THE RIGHTS AND POWERS HEREIN GRANTED,
INCLUDING THE FILING OF ANY FINANCING OR CONTINUATION STATEMENT
UNDER APPLICABLE LAWS IN EFFECT IN ANY JURISDICTION WITH
RESPECT TO THE SECURITY INTEREST CREATED HEREBY.
(d) CHANGES IN LOCATIONS, NAME, ETC. EXCEPT UPON 15 DAYS' PRIOR WRITTEN
NOTICE TO THE SECURED PARTY AND DELIVERY TO THE SECURED PARTY OF ALL
ADDITIONAL EXECUTED FINANCING STATEMENTS AND OTHER DOCUMENTS
REASONABLY REQUESTED BY THE SECURED PARTY TO MAINTAIN THE VALIDITY,
PERFECTION AND PRIORITY OF THE SECURITY INTERESTS PROVIDED FOR HEREIN,
THE GRANTOR WILL NOT:
(i) CHANGE ITS JURISDICTION OF INCORPORATION OR THE LOCATION OF ITS
CHIEF EXECUTIVE OFFICE OR SOLE PLACE OF BUSINESS FROM THAT
REFERRED TO IN THE PREAMBLE TO THIS AGREEMENT; OR
(ii) CHANGE ITS NAME, IDENTITY OR CORPORATE STRUCTURE TO SUCH AN
EXTENT THAT ANY FINANCING STATEMENT FILED IN CONNECTION WITH
THIS AGREEMENT WOULD BECOME MISLEADING.
(e) INTELLECTUAL PROPERTY.
(i) THE GRANTOR (EITHER ITSELF OR THROUGH LICENSEES) WILL (i)
CONTINUE TO USE EACH TRADEMARK THAT IS MATERIAL INTELLECTUAL
PROPERTY IN ORDER TO MAINTAIN SUCH TRADEMARK IN FULL FORCE AND
EFFECT WITH RESPECT TO EACH CLASS OF GOODS FOR WHICH SUCH
TRADEMARK IS CURRENTLY USED, FREE FROM ANY CLAIM OF ABANDONMENT
FOR NON-USE, (ii) MAINTAIN AS IN THE PAST THE QUALITY OF
PRODUCTS AND SERVICES OFFERED UNDER SUCH TRADEMARK, (iii) USE
SUCH TRADEMARK WITH THE APPROPRIATE NOTICE OF REGISTRATION AND
ALL OTHER NOTICES AND LEGENDS REQUIRED BY APPLICABLE
REQUIREMENTS OF LAW, (iv) NOT ADOPT OR USE ANY XXXX WHICH IS
CONFUSINGLY SIMILAR OR A COLORABLE IMITATION OF SUCH TRADEMARK
UNLESS THE SECURED PARTY SHALL OBTAIN A PERFECTED SECURITY
INTEREST IN SUCH XXXX PURSUANT TO THIS AGREEMENT AND (v) NOT
(AND NOT PERMIT ANY LICENSEE OR SUBLICENSEE THEREOF TO) DO ANY
ACT OR KNOWINGLY OMIT TO DO ANY ACT WHEREBY SUCH TRADEMARK MAY
BECOME
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INVALIDATED OR IMPAIRED IN ANY WAY OR DESTROY OR OTHERWISE
TARNISH THE GOODWILL ASSOCIATED WITH ANY TRADEMARK.
(ii) THE GRANTOR (EITHER ITSELF OR THROUGH LICENSEES) WILL NOT DO
ANY ACT, OR OMIT TO DO ANY ACT, WHEREBY ANY TRADE SECRET WHICH
IS MATERIAL INTELLECTUAL PROPERTY MAY BECOME PUBLICLY AVAILABLE
OR OTHERWISE UNPROTECTABLE.
(iii) THE GRANTOR (EITHER ITSELF OR THROUGH LICENSEES) WILL NOT DO
ANY ACT THAT KNOWINGLY USES ANY MATERIAL INTELLECTUAL PROPERTY
TO INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER
PERSON.
(iv) THE GRANTOR WILL NOTIFY THE SECURED PARTY IMMEDIATELY IF IT
KNOWS, OR HAS REASON TO KNOW, THAT ANY APPLICATION OR
REGISTRATION RELATING TO ANY MATERIAL INTELLECTUAL PROPERTY MAY
BECOME FORFEITED, ABANDONED OR DEDICATED TO THE PUBLIC, OR OF
ANY ADVERSE DETERMINATION OR DEVELOPMENT (INCLUDING THE
INSTITUTION OF, OR ANY SUCH DETERMINATION OR DEVELOPMENT IN,
ANY PROCEEDING IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
OR ANY COURT OR TRIBUNAL IN ANY COUNTRY) REGARDING THE
GRANTOR'S OWNERSHIP OF, RIGHT TO USE, INTEREST IN, OR THE
VALIDITY OF, ANY MATERIAL INTELLECTUAL PROPERTY OR THE
GRANTOR'S RIGHT TO REGISTER THE SAME OR TO OWN AND MAINTAIN THE
SAME.
(v) WHENEVER THE GRANTOR, EITHER BY ITSELF OR THROUGH ANY AGENT,
LICENSEE OR DESIGNEE, SHALL FILE AN APPLICATION FOR THE
REGISTRATION OF ANY INTELLECTUAL PROPERTY WITH THE UNITED
STATES PATENT AND TRADEMARK OFFICE OR ANY SIMILAR OFFICE OR
AGENCY WITHIN OR OUTSIDE THE UNITED STATES, THE GRANTOR SHALL
REPORT SUCH FILING TO THE SECURED PARTY WITHIN FIVE BUSINESS
DAYS AFTER THE LAST DAY OF THE FISCAL QUARTER IN WHICH SUCH
FILING OCCURS. UPON REQUEST OF THE SECURED PARTY, THE GRANTOR
SHALL EXECUTE AND DELIVER, AND HAVE RECORDED, ANY AND ALL
AGREEMENTS, INSTRUMENTS, DOCUMENTS, AND PAPERS AS THE SECURED
PARTY MAY REQUEST TO EVIDENCE THE SECURED PARTY'S SECURITY
INTEREST IN ANY TRADEMARK AND THE GOODWILL AND GENERAL
INTANGIBLES OF THE GRANTOR RELATING THERETO OR REPRESENTED
THEREBY.
(vi) THE GRANTOR WILL TAKE ALL REASONABLE ACTIONS NECESSARY OR
REQUESTED BY THE SECURED PARTY, INCLUDING IN ANY PROCEEDING
BEFORE THE UNITED STATES PATENT AND TRADEMARK OFFICE OR ANY
SIMILAR OFFICE OR AGENCY, TO MAINTAIN AND PURSUE EACH
APPLICATION (AND TO OBTAIN THE RELEVANT REGISTRATION) AND TO
MAINTAIN EACH REGISTRATION OF ANY TRADEMARK THAT IS MATERIAL
INTELLECTUAL PROPERTY, INCLUDING FILING OF APPLICATIONS FOR
RENEWAL, AFFIDAVITS OF USE, AFFIDAVITS OF INCONTESTABILITY AND
OPPOSITION AND INTERFERENCE AND CANCELLATION PROCEEDINGS.
(vii) IN THE EVENT THAT ANY MATERIAL INTELLECTUAL PROPERTY IS
INFRINGED UPON OR MISAPPROPRIATED OR DILUTED BY A THIRD PARTY,
THE GRANTOR SHALL NOTIFY THE SECURED PARTY PROMPTLY AFTER THE
GRANTOR LEARNS THEREOF. THE GRANTOR SHALL TAKE ALL APPROPRIATE
ACTION IN RESPONSE TO SUCH INFRINGEMENT,
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MISAPPROPRIATION OR DILUTION, AS DETERMINED IN THE EXERCISE OF
ITS REASONABLE BUSINESS JUDGEMENT, INCLUDING PROMPTLY BRINGING
SUIT FOR INFRINGEMENT, MISAPPROPRIATION OR DILUTION AND TO
RECOVER ANY AND ALL DAMAGES FOR SUCH INFRINGEMENT,
MISAPPROPRIATION OR DILUTION, AND SHALL TAKE SUCH OTHER ACTIONS
AS MAY BE APPROPRIATE IN ITS REASONABLE JUDGMENT UNDER THE
CIRCUMSTANCES TO PROTECT SUCH MATERIAL INTELLECTUAL PROPERTY.
1.7. Schedule A to the Security Agreement is hereby supplemented to reflect
the addition of the Trademarks set forth on Attachment A hereto.
2. NOTICES. Pursuant to Section 11(a) of the Security Agreement,
the Grantor hereby confirms the following as its notice information:
Merisant Company 2, Sarl
Xx Xxxx Xxxxxxx Xxxxxxxx 0
Xxxxxxxxx, Xxxxxxxxxxx CH-2000
Attention: Xxxxxxxxx Xxxxxxx
Facsimile No.: + 41 32 722 01 02
Telephone No.: + 00 00 000 00 00
with a copy to:
Merisant Company
00 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
3. NO NOVATION. It is the express intent of the parties hereto
that this Amendment is in no way intended to constitute a novation of any of the
Grantor's indebtedness which is evidenced by the SwissCo Intercompany Note. The
Grantor acknowledges and agrees that the security interest granted pursuant to
the Security Agreement with respect to the Collateral identified in any
supplement to Schedule A to the Security Agreement shall be in addition to, and
not in substitution for, the security interest granted in any other Collateral
pursuant to the Security Agreement. Nothing in this Amendment or in connection
with the transactions contemplated in connection with this Amendment or
otherwise shall be construed, directly or indirectly, by implication or
otherwise, to impair the validity, enforceability, priority, perfection or other
attributes of the security interest granted pursuant to the Security Agreement.
4. CONDITION OF EFFECTIVENESS. The effectiveness of this Amendment
is subject to the condition precedent that Secured Party shall have received
duly executed copies of the signature pages to this Amendment from all of the
parties hereto.
5. REFERENCES TO THE SECURITY AGREEMENT.
5.1. Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Security Agreement (including any
reference therein to "this
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Agreement," "hereunder," "hereof," "herein" or words of like import
referring thereto) shall mean and be a reference to the Security
Agreement as amended hereby.
5.2. The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Secured Party, nor constitute a waiver of any
provision of the Security Agreement or any other documents,
instruments and agreements executed and/or delivered in connection
therewith.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
7. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. COUNTERPARTS. This Amendment may be executed by one or more of
the parties to this Amendment on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
(Remainder of Page Intentionally Blank)
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first above written.
MERISANT COMPANY 2, SARL
By: /s/ Xxxxxx X. Xxxxxx XX
-------------------------------
Name: Xxxxxx X. Xxxxxx XX
Title: Director
MERISANT COMPANY
By: /s/ Xxxxxx X. Xxxxxx XX
-------------------------------
Name: Xxxxxx X. Xxxxxx XX
Title: VP Secretary & General Counsel
STATE OF NEW YORK )
: ss
COUNTY OF NEW YORK )
On the 11th day of July in the year 2003, before me, the undersigned,
personally appeared Xxxxxx X. Xxxxxx XX personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity as VP, Sec & Gen Counsel of Merisant Company 2, Sarl, and
that by his signature on the instrument, the individual, or the person upon
behalf of which the individuals acted, executed the instrument.
/s/ Xxxx X. Xxxxx
-----------------------
Notary Public
[affix stamp and seal] XXXX X. XXXXX
Notary Public, State of New York
STATE OF NEW YORK ) No. 02ST6090866
: ss Qualified in New York County
COUNTY OF NEW YORK ) Commission Expires 4/21/2007
On the 11th day of July in the year 2003, before me, the undersigned,
personally appeared Xxxxxx X. Xxxxxx XX personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity as VP, Sec & Gen Counsel of Merisant Company, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individuals acted, executed the instrument.
/s/ Xxxx X. Xxxxx
-----------------------
Notary Public
[affix stamp and seal] XXXX X. XXXXX
Notary Public, State of New York
No. 02ST6090866
Qualified in New York County
SIGNATURE PAGE TO AMENDMENT NO. 1 Commission Expires 4/21/2007
