Promissory Note - Merisant Co. 2 Sarl and Merisant Co.
PROMISSORY NOTE
$168,000,000.00 December 22, 2000
FOR VALUE RECEIVED, the undersigned, MERISANT COMPANY 2 SARL, a
limited liability company organized and existing under the laws of Switzerland
("BUYER"), HEREBY PROMISES TO PAY to the order of Merisant Company, a Delaware
corporation (the "SELLER") the principal amount of $168,000,000.00 (One Hundred
Sixty-Eight Million U.S. DOLLARS and NO CENTS) on the earlier to occur (the
"Maturity Date") of (i) Seller's demand therefor or (ii) December 22, 2006.
The Buyer further promises to pay interest on the unpaid principal
amount of indebtedness evidenced hereby from the date hereof until the same
shall have been paid in full at an interest rate equal to the per annum rate of
interest publicly announced from time to time by Canadian Imperial Bank of
Commerce as its prime rate in effect at its principal office in New York City,
which interest shall be calculated monthly, in arrears, on the basis of a 365-
(or 366-, as the case may be) day year and actual days elapsed. Any change in
such rate of interest shall be effective as of the opening of business on the
effective day of such change. Accrued interest shall be payable on the 25th day
of each calendar month, commencing on January 25, 2001 and on the Maturity Date
or, if earlier, the date the principal amount evidenced hereby is paid in full
and this Promissory Note is cancelled.
The Buyer shall have the right, at any time and from time to time, at
its option to make prepayments, in whole or in part, without premium or penalty,
of the principal amount owing under this Promissory Note.
All payments of principal and interest in respect of this Promissory
Note shall be made to the Seller in lawful money of the United States of
America, in same day funds, for the account of the Seller to Wachovia Bank,
Winston-Salem, North Carolina, USA, Account No. 1864-047859, ABA # 053100494,
Ref. Lock Box # 945537 (Merisant Company), or at such other place as may, from
time to time, be designated by the Seller. The original principal amount of the
indebtedness evidenced hereby, and all payments made on account of principal
thereof, shall be recorded by the Seller on its books and records.
This Promissory Note is secured pursuant to that certain Security
Agreement of even date herewith (the "Security Agreement") and reference is
hereby made to the Security Agreement for a description of the property and
interests in property of the Buyer in which a security interest has been
granted, the nature and extent of the security, the terms and conditions on
which the security interests were granted and the rights of the Seller in
respect thereof.
If any of the following events (each an "Event of Default") shall
occur and be continuing:
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(a) the Buyer shall fail to pay any (i) principal on the due date
therefor in accordance with the terms hereof or (ii) accrued interest hereunder
within five (5) days after the same becomes due and payable in accordance with
the terms hereof;
(b) the Buyer shall default in the observance or performance of the
Security Agreement in accordance with its terms and such default shall continue
unremedied for a period of thirty (30) days after notice thereof from the Seller
to the Buyer is delivered;
(c) the Security Agreement shall cease, for any reason, to be in full
force and effect or the Buyer shall so assert or any security interest created
thereunder shall cease to be enforceable and of the same effect and priority
purported to be created thereby;
(d) Buyer shall commence, or have commenced against it, any case,
proceeding or other action under any existing or future lay of any jurisdiction
relating to bankruptcy, insolvency, reorganiztion or relief of debtors, seeking
to have an order for relief entered with respect to it or seeking to adjudicate
it a bankrupt or insolvent or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts or seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial part
of its assets or Buyer shall make a general assignment for the benefit of its
creditors, which with respect to any case, proceeding or other such action
commenced against it, results in the entry of an order for relief or any such
adjudication or appointment or remains undismissed, undischarged or unbonded for
a period of sixty (60) days; or
(e) there shall be commenced against Buyer any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or a substantial part of its assets that results
in the entry of an order for any such relief that shall not have been vacated,
discharged or stayed or bonded pending appeal within sixty (60) days after the
entry thereof,
then with respect to any such Event of Default specified in clause (d) above,
all amounts owing under this Promissory Note shall immediately become due and
payable and, with respect to all other such Events of Default, the Seller may
declare all amounts owing under this Promissory Note to be due and payable
forthwith, whereupon the same shall immediately become due and payable.
All notices, requests and demands to or upon the Buyer 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 Buyer at Merisant Company 2
Sarl, c/o Dynafisc SA, Promenade-Noire 1, CH-2000, Neuchatel, Switzerland,
Attention: Marcus Vischer, Telecopy ____________ and Telephone ____________ with
a copy to Carl W. Warschausky, Merisant Company, The Merchandise Mart, Suite
900, 200 World Trade Center, Chicago, Illinois 60654-1001, or in each case to
such other address as the referenced party shall designate by written notice.
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Demand, presentment, diligence, protest and notice of nonpayment are
hereby waived by the Buyer to the extent permitted by applicable law. No failure
to exercise and no delay in exercising, on the part of Seller, any right,
remedy, power or privilege hereunder or under the Security Agreement shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder or thereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege by or on behalf of the Seller. The rights, remedies, powers and
privileges provided herein and in the Security Agreement are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
Buyer hereby irrevocably and unconditionally (i) submits for itself
and its property in any legal action or proceeding relating to this Promissory
Note and the 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 Buyer by registered or certified
mail (or any substantially similar form of mail) or courier, postage or courier
charges prepaid, to its address at c/o Merisant Company, 800 North Lingbergh
Boulevard, St. Louis, Missouri 63167, Attn: General Counsel, Telecopy No.
314-694-5926, or to such other address of which Buyer has notified the Seller in
writing; (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 sue 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.
Buyer is subject to civil and commercial law with respect to its
obligations under this Promissory Note and the Security Agreement and the
execution, delivery and performance by Buyer of this Promissory Note and the
Security Agreement constitute and will constitute private and commercial acts
and not public or governmental acts. Neither the Buyer 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 Buyer is
organized and existing in respect of its obligations under this Promissory Note
and the Security Agreement. Buyer 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 Buyer is organized
and existing in respect of its obligations under this Promissory Note and the
Security Agreement.
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THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK. THE BUYER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS PROMISSORY NOTE.
This Promissory Note shall be binding on the Buyer, its successors and
assigns and shall inure to the benefit of the Seller, its successors and
assigns. In no event may the Buyer assign or transfer any of its obligations
under this Promissory Note without the prior written consent of the Seller.
IN WITNESS WHEREOF, Buyer has caused this Promissory Note to be
executed and delivered by its duly authorized officer as of the day and year
first above written.
MERISANT COMPANY 2 SARL
By /s/ M. Vischer
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Name: M. Vischer
Title: Director
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OFFICIAL CERTIFICATION
Seen for authentication of the reverse side signature, affixed in our presence
by
MARKUS VISCHER, DR.IUR., citizen of Switzerland (Basle), in CH-8050 Zurich,
Affolterstrasse 166, (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. 2924 NOTARIAT FLUNTERN-ZURICH
Fee: Fr. 20.--
/s/ U. Neuenschwander
U. Neuenschwander, Deputy Notary Public
[Seal]
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