Exhibit 10.4
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Security Agreement"), is made and entered into as
of December 22, 2000 by and between Merisant Company 2, Sarl (the "Grantor"), a
limited liability company organized and existing under the laws of Switzerland,
located at Xxxxxxxxx Xxxxx, 00000, Xxxxxxxxx, Xxxxxxxxxxx and Merisant Company
(the "Secured Party"), a corporation organized and existing under the laws of
the State of Delaware, United States of America, located at 000 X. Xxxxxxxxx
Xxxx., Xx. Xxxxx, Xxxxxxxx, 00000 Xxxxxx Xxxxxx of America, pursuant to the
obligations of Grantor set forth in the SwissCo Intercompany Note.
W I T N E S S E T H:
WHEREAS, the Secured Party wishes to assure itself of the performance of
the obligations of the Grantor set forth in the SwissCo Intercompany Note; and
WHEREAS, the Grantor wishes to satisfy its obligations under the SwissCo
Intercompany Note by granting a security interest in certain of its trademarks
and other agreements and intangibles together with the goodwill of the business
appurtenant to the trademarks; and
NOW, THEREFORE, in consideration of the foregoing and the respective
agreements and conditions contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
SECTION 1. DEFINITIONS.
Unless otherwise defined herein, terms defined in the Credit Agreement and
Guarantee and Collateral Agreement and used herein shall have the meanings given
to them in the Credit Agreement and Guarantee and Collateral Agreement.
(a) "ADMINISTRATIVE AGENT", means Bankers Trust Company.
(b) "ARRANGERS", means CIBC World Markets Corp. and Deutsche
Bank Securities Inc.
(c) "ASSIGNMENT AND ASSUMPTION AGREEMENT", means the
Assignment and Assumption Agreement entered into between
Grantor and Secured Party dated _______ in which Grantor
purchased the Trademarks from Secured Party.
(d) "COLLATERAL", as defined in Section 2 of this Security
Agreement.
(e) "CONSENT AND SECOND AMENDMENT", means the amendatory
agreement to the Credit Agreement entered into between the
Secured Party and Lenders, Arrangers, Syndication Agent and
Administrative Agent dated December 6, 2000.
(f) "CREDIT AGREEMENT", means the Credit Agreement entered
into among the Secured Party and Lenders, Arrangers,
Syndication Agent and Administrative Agent on March 17, 2000,
as amended by the First Amendment dated as of May 25, 2000,
and the Consent and Second Amendment, as such Credit Agreement
may be further amended, supplemented or modified from time to
time.
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(g) "EVENT OF DEFAULT", means those events of default set
forth in the SwissCo Intercompany Note.
(h) "GRANTOR OBLIGATIONS": as defined in Section 4 of this
Security Agreement.
(i) "GUARANTEE & COLLATERAL AGREEMENT", means the Guarantee
& Collateral Agreement entered into among the Secured Party,
Tabletop Holdings, Inc., a Delaware corporation and the
Subsidiary Guarantors (as defined in the Credit Agreement) on
March 17, 2000, as may be amended, supplemented and modified
from time to time.
(j) "LENDERS", means those several banks and financial
institutions or other entities.
(k) "PROCEEDS" means all "proceeds" as such term is defined
in Section 1.1(b) of the Guarantee and Collateral Agreement.
(l) "SUBJECT AGREEMENTS", means the agreement entered into
by Merisant Company set forth on Schedule B.
(m) "SUBJECT INTANGIBLES", means any and all know-how and
general intangibles owned by Grantor and used in connection
with its use of related to the Subject Marks and the exercise
of its rights under the Subject Agreements.
(n) "SWISSCO INTERCOMPANY NOTE, means the promissory note
dated December __, 2000, executed and delivered to Secured
Party by Grantor in consideration for the sale by Secured
Party to Grantor of the Trademarks as set forth in the
Assignment and Assumption Agreement.
(o) "SYNDICATION AGENT", means Canadian Imperial Bank of
Commerce.
(p) "TRADEMARKS", means any and all common law trademark
rights, trademark registrations and applications owned by
Grantor, including, without limitation, the foreign trademark
registrations listed on Schedule A attached hereto and made a
part hereof together with the goodwill of the business of
Grantor appurtenant to the trademarks.
SECTION 2. GRANT OF SECURITY INTEREST. For valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Grantor hereby
assigns and grants to the Secured Party and its successors and assigns a first
priority security interest in and a lien upon all of the Trademarks, Subject
Agreements and Subject Intangibles, and to the extent not otherwise included,
all Proceeds and products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any of the foregoing
(collectively, the "COLLATERAL").
SECTION 3. FURTHER ASSURANCES. Grantor agrees to execute any and all
documentation covering the Collateral and shall take such other steps as may be
required under the applicable laws of the United States or other foreign
jurisdictions and as are necessary in order to perfect the security interest of
the Secured Party in the Collateral, granted hereunder including, without
limitation the execution of any further documents necessary to perfect the
security interests in the Trademark Offices of those jurisdictions recited in
Clause 9(F)(ii) of the Consent and Second Amendment or such other jurisdictions
as set forth on Schedule A of this Security Agreement as may be determined by
Secured Party during the term of this Security Agreement or until the SwissCo
Intercompany Note is paid in full.
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SECTION 4. OBLIGATIONS SECURED. This Security Agreement and the security
interest created hereby are given for the purpose of securing the payment and
performance of the Grantor's obligations ("Grantor Obligations") under the
SwissCo Intercompany Note.
SECTION 5. REPRESENTATIONS AND WARRANTIES. Grantor represents and
warrants that: (a) Except for the security interest granted to the Secured Party
pursuant to this Security Agreement, Grantor is the sole and exclusive owner of
the entire right, title and interest in and to the Collateral and, Grantor owns
such Collateral free and clear of any and all liens or claims of others. No
financing statement or other public notice with respect to all or any part of
the collateral is on file or of record in any public office, except such as have
been filed in favor of the Secured Party pursuant to this Security Agreement or
in favor of the Lenders pursuant to the Guarantee and Collateral Agreement. (b)
The Trademarks set forth on Schedule A constitute all of the foreign trademarks
registrations and applications now owned by Grantor.
(c) The Subject Agreements set forth on Schedule B are currently valid and
in force and effect as of the date hereof. Grantor is a duly authorized licensee
under the terms of the license therein and pursuant to the transfer under the
Assignment and Assumption Agreement.
(d) Grantor agrees that the representations and warranties contained in
Sections 4.1, 4.2, 4.3 and 4.8 of the Guarantee and Collateral Agreement shall
be incorporated by reference in this Security Agreement in their entirety as if
fully set forth herein with the same effect as if applied to this Security
Agreement. All capitalized terms set forth in such Sections shall have the
meanings provided in the Guarantee and Collateral Agreement; provided that for
purposes of this Security Agreement, to the extent set forth in the Guarantee
and Collateral Agreement, (a) the term "Administrative Agent" shall be deemed to
refer to the Secured Party, (b) the term "Obligations" shall be deemed to refer
to the Grantor Obligations, (c) the reference to "Schedule 3" shall be deemed to
refer to Section 3, (d) the reference to "Schedule 4" shall be deemed to refer
to the preamble of this Security Agreement, (e) the reference to "Schedule 6"
shall be deemed to refer to Schedule A, (f) all references to "Lenders" shall be
deemed stricken wherever they may appear and (g) the terms "Agreement",
"Collateral", "Grantor" and "Intellectual Property" shall have the respective
meanings provided in this Security Agreement. Such representations and
warranties shall not be affected in any manner by the amendment, modification or
termination of the Guarantee and Collateral Agreement.
(e) Grantor agrees that the representations and warranties contained in
Sections 4.3, 4.4 (exclusive of clauses (i) and (ii) thereof), 4.5 and 4.6 of
the Credit Agreement shall be incorporated by reference in this Security
Agreement in their entirety as if fully set forth herein with the same effect as
if applied to this Security Agreement. All capitalized terms set forth in such
Sections shall have the meanings provided in the Credit Agreement; provided that
for purposes of this Security Agreement, to the extent set forth in the Credit
Agreement, (a) the terms "Borrower" and "Loan Party" shall be deemed to refer to
Grantor, (b) the terms "Loan Document(s)" and "Agreement" shall be deemed to
refer to this Security Agreement and (c) the references to "Holdings",
"Subsidiaries", "Letters of Credit", "borrowings", "Liens created by the
Security Documents" and "Acquisition" shall be deemed stricken wherever they may
appear. Such representations and warranties shall not be affected in any manner
by the amendment, modification or termination of the Credit Agreement.
SECTION 6. COVENANTS. Grantor agrees that the covenants contained in
Sections 5.1, 5.3, 5.4 (exclusive of clause (ii) thereof), 5.5 (exclusive of
paragraph (b) and clause (i) thereof), 5.6 and 5.9(a) and (d)-(h) of the
Guarantee and Collateral Agreement shall be incorporated by reference in this
Security Agreement in their entirety as if fully set forth herein with the same
effect as if applied to this Security Agreement. All capitalized terms set forth
in such Sections shall have the meanings provided in the Guarantee and
Collateral Agreement; provided that for purposes of this Security Agreement, to
the extent set forth in the Guarantee and Collateral Agreement, (a) the term
"Administrative Agent" shall be deemed to refer to the Secured Party, (b) the
references to "Copyright", "Patent", and "Lenders" shall be deemed
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stricken wherever they may appear, (c) the references to "Section 4.2" and
"Section 4.3" shall be deemed to refer to such sections as incorporated by
reference into this Security Agreement pursuant to Section 5(d) hereof, and (d)
the terms "Agreement", "Collateral", "Grantor" and "Intellectual Property" shall
have the respective meanings provided in this Security Agreement. Such covenants
shall not be affected in any manner by the amendment, modification or
termination of the Guarantee and Collateral Agreement.
SECTION 7. RIGHTS TO TRADEMARKS. So long as there is not an Event of
Default under the SwissCo Intercompany Note or this Security Agreement, the
Grantor shall retain possession and have full legal and beneficial ownership of
the Collateral.
SECTION 8. INDEMNIFICATION. Grantor agrees to indemnify, defend and hold
harmless Secured Party from and against any and all claims, damages, losses,
costs, expenses, liability or judgments which may be incurred or sustained by
Secured Party or asserted against Secured Party, directly or indirectly, in
connection with the existence of or the exercise of any of the security rights
with respect to the Collateral or the execution, delivery, enforcement,
performance and administration of this Security Agreement.
SECTION 9. DEFAULT AND REMEDIES. For purposes of this Agreement, breach
by Grantor of any term, condition, representation or warranty of the SwissCo
Intercompany Note or this Security Agreement shall constitute an Event of
Default.
(a) Upon notice from Secured Party of any Event of Default, Grantor shall
execute written assignment agreements and any other documentation required
to effect transfer of the Collateral from Grantor to Secured Party or its
designee. Upon the occurrence of such Event of Default, the Secured Party
shall have, in addition to all other rights and remedies granted by the
SwissCo Intercompany Note and this Security Agreement, those allowed by law
and the rights and remedies enacted in any of the jurisdictions in which
the Trademarks may be located.
(b) The failure of the Secured Party to exercise any right to seek any remedy
provided for in this section, and the acceptance by the Secured Party of
any partial or delinquent performance by the Grantor of any of its
obligations under the SwissCo Intercompany Note or this Security Agreement,
shall not constitute a waiver by the Secured Party of any of its rights or
remedies hereunder or of its right thereafter to enforce this Security
Agreement strictly in accordance with its terms. No waiver of any rights of
the Secured Party, or modification of any term of this Security Agreement,
shall be enforceable unless in writing and signed by an authorized
representative of each of the parties hereto.
SECTION 10. RELEASE. As such time as Grantor's obligations under the
SwissCo Intercompany Note and this Security Agreement and the obligations
thereunder have been performed, paid or satisfied in full, Secured Party shall
execute and deliver to Grantor all such releases and other instruments necessary
to terminate the Secured Party's interest in the Collateral. Secured Party shall
not release its interest in the Collateral without obtaining the prior written
consent of the Administrative Agent and any release granted without such prior
written consent by the Administrative Agent shall be void and without effect.
SECTION 11. MISCELLANEOUS.
(a) All notices, requests and demands to or upon the Grantor shall be in
writing (including by telecopy), and shall be deemed to have been duly given or
made when delivered or three (3) calendar days after being deposited with an
international courier service, delivery charges prepaid, or, in the case of
telecopy notice, when received, addressed to the Grantor at __________________,
Attention: _____________, Telecopy ____________ and Telephone ____________ with
a copy to Xxxx X. Xxxxxxxxxxx, Merisant Company, The Merchandise Mart, Suite
900, 200 World Trade Center, Chicago,
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Illinois 60654-1001, or in each case to such other address as the referenced
party shall designate by written notice.
(b) Grantor hereby irrevocably and unconditionally (i) submits for itself
and its property in any legal action or proceeding relating to this Security
Agreement or for recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States for the Southern District of New York, and
appellate courts from any thereof; (ii) consents that any such action or
proceeding may be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same; (iii) agrees that service of process in
any such action or proceeding may be effected by delivery of a copy thereof to
the legal address of the Grantor in any manner permitted by Swiss law or
applicable international treaties; (iv) agrees that nothing herein shall affect
the right to effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction; and (v) waives, to the
maximum extent not prohibited by law, any right it may have to claim or recover
in any legal action or proceeding referred to in this paragraph any special,
exemplary, punitive or consequential damages.
(c) Grantor is subject to civil and commercial law with respect to its
obligations under this Security Agreement and the execution, delivery and
performance by Grantor of this Security Agreement constitutes and will
constitute private and commercial acts and not public or governmental acts.
Neither the Grantor nor any of its property, whether or not held for its own
account, has any immunity (sovereign or other similar immunity) from any suit or
proceeding, from jurisdiction of any court or from set-off or any legal process
(whether service or notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or other similar immunity) under
laws of the jurisdiction in which Grantor is organized and existing in respect
of its obligations under this Security Agreement. Grantor hereby waives every
immunity (sovereign or otherwise) to which it or any of its properties would
otherwise be entitled from any legal action, suit or proceeding, from
jurisdiction of any court and from set-off or any legal process (whether service
or notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise) under the laws of the jurisdiction
in which the Grantor is organized and existing in respect of its obligations
under this Security Agreement.
(d) THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. GRANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS SECURITY AGREEMENT.
(e) ENTIRE AGREEMENT; MODIFICATIONS. This Agreement embodies the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements with respect thereto. With the exception of
Schedule A, this Agreement may not be amended or modified unless by written
instrument signed by the party against whom such modification or amendment is to
be enforced.
(f) BINDING EFFECT. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties, their successors
and assigns.
(g) SEVERABILITY. In the event that any one or more of the clauses
contained in the Agreement shall be declared invalid or unenforceable by a final
order or judgment of any court or regulatory authority of competent
jurisdiction, the Agreement shall be construed to contain a modified version of
such clause which reflects the intent of the parties to the maximum which is
valid or enforceable. If such modification is not reasonably practicable, then
this Agreement shall be construed as if it did not contain such invalid or
unenforceable clause and shall, in all other respects remain in full force and
effect.
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(h) WAIVER. Any waiver by Grantor or Secured Party of a breach of any term
or condition of this Agreement shall not be considered as a waiver of any
subsequent breach of the same or any other term or condition hereof.
(i) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall together constitute one and the same
instrument, and shall become effective when one or more counterparts have been
signed by Secured Party and delivered to Grantor and one or more counterparts
have been signed by Grantor and delivered to Secured Party.
(j) HEADINGS. The section headings contained in this Agreement are solely
for the purpose of reference, are not part of the agreement of the parties and
shall not in any way affect the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Security Agreement to
be duly executed and delivered as of the day and year first above written.
MERISANT COMPANY 2, SARL
By: /s/ X. Xxxxxxx
----------------------------------
Printed or Typed Name:
X. Xxxxxxx
-------------------------------------
Title: Director
-------------------------------
MERISANT COMPANY
By: /s/ Xxxxxx X. Xxxxxx XX
----------------------------------
Printed or Typed Name:
Xxxxxx X. Xxxxxx XX
-------------------------------------
Title: Vice President & Secretary
-------------------------------
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OFFICIAL CERTIFICATION
Seen for authentication of the reverse side signature, affixed in our presence
by
XXXXXX XXXXXXX, DR.IUR., citizen of Switzerland (Basle), in XX-0000 Xxxxxx,
Xxxxxxxxxxxxxxx 000, (who is personally known to us),
who, according to the extract shown to us from the Commercial Register dated 19
December 2000 is entered in the Commercial Register as sole Director with the
right to sign individually for the
MERISANT COMPANY 2 SARL, having its registered domicile in Neuchatel
(Switzerland)
Zurich, this 21th of December 2000
B No. 2939 NOTARIAT FLUNTERN-ZURICH
Fee: Fr. 30.--
/s/ X. Xxxxxxxxxxxxxx
X. Xxxxxxxxxxxxxx, Deputy Notary Public
[Seal]
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GRANTOR ' S ACKNOWLEDGEMENT
The signature of the officer who executes
the Security Agreement on behalf of Grantor
should be acknowledged before a notary public in Switzerland
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C O R P O R A T E A C K N O W L E D G E M E N T
UNITED STATES OF AMERICA ]
]
STATE OF ILLINOIS ] SS:
]
COUNTY OF XXXX ]
On this 22nd day of December 2000, before me personally appeared
Xxxxxx X. Xxxxxx, XX to me known, who, being by me duly sworn, did depose and
say that he/she is the Vice President and General Counsel of the company
described in and which executed the foregoing instrument; that he/she knows the
seal of said company; that the said seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said company and that he/she signed his/her name thereto by like order.
Notary Public /s/ Xxxxx Xxxxxx Grant
[Seal]
S E C U R E D P A R T Y
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