Exhibit 10.5


 


LIMITED WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT


 


This
LIMITED WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), is dated as of March 29,
2006, among Merisant Company, a Delaware corporation (the “Borrower”),
Merisant Worldwide, Inc., a Delaware corporation, formerly known as Tabletop
Holdings, Inc. (“Holdings”), each of the
Requisite Lenders listed on the signature page hereto and Credit Suisse, Cayman
Islands Branch (formerly Credit Suisse First Boston), as agent for the Lenders
and Issuers (in such capacity, the “Administrative Agent”).


 


RECITALS


 


A.            The
Borrower, Holdings, the Lenders, the Issuers, the Administrative Agent, Credit
Suisse, Cayman Islands Branch (formerly Credit Suisse First Boston), as sole
arranger and book manager, Wachovia Bank, National Association, as syndication
agent, and JPMorgan Chase Bank, National Association (successor by merger to
Bank One, NA) and Fortis Capital Corp., as co-documentation agents are parties
to that certain Credit Agreement, dated as of July 11, 2003, as amended by
that certain First Amendment to Credit Agreement, dated as of July 2,
2004, by that certain Second Amendment to Credit Agreement, dated as of
October 20, 2004, and as amended by that certain Third Amendment to Credit
Agreement, dated as of March 11, 2005 (as further amended or otherwise
modified, the “Credit Agreement”).


 


B.            The
Borrower and Holdings have requested a limited waiver from Requisite Lenders as
a result of failure to comply with certain provisions of the Credit Agreement,
specifically causing Events of Default under Sections 7.1(a), (b), (c), and (d), but, solely to
the extent such Events of Default were caused by Borrower’s failure to apply
payments on the SwissCo Intercompany Note to the Loans in accordance with Section 2.9(a)(ii).
The Borrower and Holdings have also requested a limited waiver from the
Requisite Lenders with respect to compliance with certain financial covenants
as set forth herein.


 


C.            Additionally,
Borrower has requested a waiver of its obligation to pay default interest
pursuant to Section 2.10(c).


 


D.            The
Borrower and Holdings have requested and agreed to modifications of certain
provisions and covenants and the Requisite Lenders have agreed to such
revisions subject to the terms and conditions set forth below.


 


E.             The
Borrower, Holdings, and the Requisite Lenders have agreed to enter into this
Amendment in accordance with Section 9.1(a) of the Credit Agreement to amend and
modify the Credit Agreement, among other things, to reflect the changes
described above.


 


NOW,
THEREFORE, in consideration of the premises and the respective representations,
warranties, covenants and agreements set forth in this Amendment, and intending
to be legally bound, the parties hereto agree as follows:


 

















 


ARTICLE 1


DEFINITIONS


 


1.1.         Defined Terms.


 


(a)           Capitalized
terms that are defined in this Amendment shall have the meanings ascribed in
this Amendment to such terms. All other capitalized terms shall have the
meanings ascribed to such terms in the Credit Agreement, as amended by this
Amendment. Unless the context of this Amendment clearly requires otherwise,
references to the plural include the singular; references to the singular
include the plural; the words “include,” “includes,” and “including” will be
deemed to be followed by “without limitation”; and the term “or” has, except
where otherwise indicated, the inclusive meaning represented by the phrase “and/or”.
The principles of interpretation set forth in Section 1.4 of the Credit Agreement shall apply to the provisions of this Amendment.


 


(b)           Each
reference to “hereof”, “hereunder”, “herein” and “hereby” and each other
similar reference contained in the Credit Agreement, each reference to “this
Agreement”, “the Credit Agreement” and each other similar reference contained
in the Credit Agreement and each reference contained in this Amendment to the “Credit
Agreement” shall on and after the Amendment Effective Date refer to the Credit
Agreement as amended by this Amendment. Any notices, requests, certificates and
other instruments executed and delivered on or after the Amendment Effective
Date may refer to the Credit Agreement without making specific reference to
this Amendment but nevertheless all such references shall mean the Credit
Agreement as amended by this Amendment unless the context otherwise requires. This
Amendment constitutes a “Loan
Document” as defined in the Credit
Agreement.


 


ARTICLE 2


LIMITED WAIVER


 


2.1.         Waiver of
Certain Events of Default. Subject to the terms and conditions set forth
herein, and in reliance on the representations and warranties of Borrower and
Holdings, and each of their Subsidiaries, the Lenders waive each of the Events
of Default set forth below to the extent such Event of Default was caused by
the failure of the Borrower from time to time prior to the date hereof to apply
payments on the SwissCo Intercompany Note to the Loans pursuant to Section 2.9(a)(ii):


 


(a)           each Event of Default under Section 7.1(a), resulting
from the Borrower’s failure to make the required mandatory payments of the
Loans pursuant to Section 2.9(a)(ii);


 


(b)           each Event of Default under Section 7.1(b), resulting
from the Borrower’s breach of the representation and warranty that there is no
Default or Event of Default, such representation and warranty having been made
each time that a Loan was requested, each time Loan proceeds were received,
each time a continuation and conversion was requested, and at the time of
delivery of each Compliance Certificate;


 


2

















 


(c)           each Event of Default under Section 7.1(c), resulting
from the Borrower’s failure to comply with Section 5.7(i), which requires Borrower to promptly provide notice
of any Event of  Default to
Administrative Agent and each Lender; and


 


(d)           each Event of Default under Section 7.1(d), resulting
from the Borrower’s failure to notify the Administrative Agent in writing (as
required pursuant to Section 2.9(h)) of the amount of mandatory prepayments made
pursuant to Section 2.9(a)(ii) and the reason therefor.


 


2.2.         Waiver of Compliance with
Financial Covenants. Subject to
the terms and conditions set forth herein, and in reliance on the
representations and warranties of Borrower and Holdings, and each of their
Subsidiaries, the Lenders waive compliance
as of December 31, 2005 with the financial covenants set forth in Section 6.1
of the Credit Agreement (as in effect prior to giving effect to the waiver
herein described), provided, that as of December 31, 2005, the Borrower was in
compliance with the financial covenants set forth in Section
3.1(n) hereof.


 


2.3.         Waiver of Default Interest.
Subject to the terms and
conditions set forth herein, and in reliance on the representations and
warranties of the Borrower and Holdings, and each of their Subsidiaries, the
Lenders waive the Borrower’s obligation to pay default interest pursuant to Section 2.10(c) on those portions of the Term Loans that were
required to be repaid with proceeds of mandatory prepayments (as set forth
above), but which were not repaid.


 


ARTICLE 3


AMENDMENTS


 


3.1.         Amendments.


 


(a)           Section 1.1 of the
Credit Agreement is hereby amended by adding the following definitions in the
proper alphabetical order:


 


“Consolidated
First Lien Leverage Ratio” means, as at the last day of any Fiscal
Quarter, the ratio of (a) Consolidated Total First Lien Debt on such day to (b)
Consolidated EBITDA for the four consecutive Fiscal Quarters ending on such
day.


 


“Consolidated
Total First Lien Debt” means, at any date, the aggregate principal
amount of all outstanding Tranche A (Euro) Term Loans, plus the aggregate principal amount of all
outstanding Tranche B Term Loans, plus
the aggregate Revolving Credit Commitments (whether used or unused).


 


“One-Time  Consolidated First Lien
Leverage Ratio” means, for any day, the ratio of (a) One-Time
Consolidated Total First Lien Debt on such day to (b) Consolidated EBITDA for
the four consecutive Fiscal Quarters ended on or immediately prior to such day.


 


“One-Time Consolidated Total First Lien Debt” means, at any date, the aggregate
principal amount of all outstanding Tranche A (Euro) Term Loans, plus the aggregate principal amount of all
outstanding Tranche B Term Loans, plus
the actual Revolving Credit Outstandings.


 


3

















 


“Mandatory
Prepayment Amount” means such amount of additional capital, the Net
Cash Proceeds of which shall be not less than an amount sufficient to result in
a One-Time Consolidated First Lien Leverage Ratio of less than or equal to
3.0x.


 


“Permitted
Junior Lien Indebtedness” shall mean additional Indebtedness secured
by Liens on the Collateral that are junior to the Liens granted pursuant to the
Collateral Documents to the Secured Parties and guaranteed by Holdings and
Subsidiary Guarantors; provided, however, that, (i) the aggregate
principal amount of such Indebtedness plus
the actual outstanding principal amounts of all Term Loans (calculated on a pro
forma basis taking into account the paydown of the Term Loans following the
Refinancing Transaction) plus the
aggregate Revolving Credit Commitments shall not exceed $325,000,000,
(ii) the Liens securing such Indebtedness shall be subordinated to the
Liens in favor of Secured Parties on terms satisfactory to the Requisite
Lenders, and shall specifically include, without limitation, the terms set
forth on Schedule 6.2(xiv), (iii) the holders of such Indebtedness
execute an intercreditor agreement on terms satisfactory to the Requisite
Lenders, and (iv) the maturity and other terms in the agreement evidencing
such Indebtedness shall be satisfactory to the Requisite Lenders.


 


“Refinancing
Transaction” means the issuance or incurrence by Borrower of
additional capital resulting in Net Cash Proceeds to the Borrower of not less
than the Mandatory Prepayment Amount.


 


“Refinancing
Transaction Closing Date” means the date the Refinancing Transaction
becomes effective.


 


“SwissCo 2
Revolving Note” means a promissory note made by the Borrower in
favor of SwissCo 2, which shall contain the following terms:  (a) the note shall mature in 2011; (b) the
interest rate shall be equal to LIBO plus 0.25% per annum, or such other rate
as may be prescribed by applicable law; and (c) principal shall be due and
payable on the maturity date of such note.


 


(b)           The
definition of “Applicable
Margin” is revised in its entirety to
read as follows:


 


“Applicable Margin” means:


 


during the period commencing on March 29, 2006 to
but not including the Refinancing Transaction Closing Date, a per annum rate
equal to the rate set forth below opposite the applicable type of Loan for the
specified period:


 


4

















 


	
   

  	
   

  	
  Applicable Margin for 

  Revolving Loans 

  and Swing Loans

  	
   

  	
  Applicable 

  Margin for 

  Tranche A 

  (Euro) Term 

  Loans

  	
   

  	
  Applicable Margin for 

  Tranche B Term Loans

  	
   

  
	
  Date

  	
   

  	
  LIBO Rate 

  Loans

  	
   

  	
  Base Rate 

  Loans

  	
   

  	
  LIBO Rate 

  Loans

  	
   

  	
  LIBO Rate 

  Loans

  	
   

  	
  Base Rate 

  Loans

  	
   

  
	
  March 29, 2006 through June 30, 2006

  	
   

  	
  4.25

  	
  %

  	
  3.00

  	
  %

  	
  4.25

  	
  %

  	
  4.25

  	
  %

  	
  3.00

  	
  %

  
	
  July 1, 2006 through September
  30, 2006

  	
   

  	
  5.25

  	
  %

  	
  4.00

  	
  %

  	
  5.25

  	
  %

  	
  5.25

  	
  %

  	
  4.00

  	
  %

  
	
  October 1, 2006 and thereafter

  	
   

  	
  6.25

  	
  %

  	
  5.00

  	
  %

  	
  6.25

  	
  %

  	
  6.25

  	
  %

  	
  5.00

  	
  %

  



 


; and on and after the Refinancing Transaction
Closing Date, a per annum rate equal to the rate set forth below opposite the
applicable type of Loan and the then applicable Consolidated First Lien
Leverage Ratio (determined for the period ending on the last day of the most
recent Fiscal Quarter or Fiscal Year, as applicable, for which Financial
Statements have been delivered pursuant to Section 5.1(a) or (b) set forth
below):


 


	
   

  	
   

  	
  Applicable Margin for 

  Revolving Loans 

  and Swing Loans

  	
   

  	
  Applicable 

  Margin for 

  Tranche A 

  (Euro) Term 

  Loans

  	
   

  	
  Applicable Margin for 

  Tranche B Term Loans

  	
   

  
	
  Consolidated First 

  Lien Leverage 

  Ratio

  	
   

  	
  LIBO Rate 

  Loans

  	
   

  	
  Base Rate 

  Loans

  	
   

  	
  LIBO Rate 

  Loans

  	
   

  	
  LIBO Rate 

  Loans

  	
   

  	
  Base Rate 

  Loans

  	
   

  
	
  Greater than 3.00x

  	
   

  	
  4.00

  	
  %

  	
  2.75

  	
  %

  	
  4.00

  	
  %

  	
  4.00

  	
  %

  	
  2.75

  	
  %

  
	
  Equal to or less than 3.00x

  	
   

  	
  3.25

  	
  %

  	
  2.00

  	
  %

  	
  3.25

  	
  %

  	
  3.25

  	
  %

  	
  2.00

  	
  %

  



 


Changes
in the Applicable Margin resulting from changes in the Consolidated First Lien
Leverage Ratio shall become effective as to all Loans on the date that is 3
Business Days after the date on which Financial Statements are delivered to the
Lenders pursuant to Section 5.1(a) or (b) of this Agreement and shall remain in
effect until the next change to be effected pursuant to this paragraph. Notwithstanding
anything to the contrary set forth in this Agreement (including the then
effective Consolidated First Lien Leverage Ratio), if any financial statements
referred to above are not delivered within the time periods 


 


5

















 


specified in Section 5.1(a) or
(b) of this Agreement, then the Applicable Margin from and including the date
on which such respective financial statements were so required to be delivered
to but not including the date that is 3 Business Days after the date on which
such financial statements are delivered, shall equal the highest rate set forth
in each column of the appropriate chart above. Each
determination of the Consolidated First Lien Leverage Ratio pursuant to the second
chart above shall be made in a manner consistent with the determination thereof
pursuant to Section 6.1(i) of this Agreement.


 


(c)           The
definition of “Asset Sale” is revised in its entirety to read as follows (with the new language underlined
for convenience):


 


“Asset Sale” means (i) any
Disposition of property or series of related Dispositions of property
(excluding any Disposition permitted by clause (i), (ii), (iii), (iv), (v),
(vi), (viii) or (ix) of Section 6.5 but including any Disposition
permitted by clause (vii) of Section 6.5) that yields gross proceeds
to Holdings, the Borrower or any of its Subsidiaries (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of notes
or other debt securities and valued at fair market value in the case of other
non-cash proceeds) in excess of $1,000,000 or, whether or not related
Dispositions, that yields gross proceeds in excess of $1,000,000 in the
aggregate after March 29, 2006, and
(ii) notwithstanding the exclusion from clause (i) above of any
Disposition permitted by clause (v) of Section 6.5, any Receivable
Qualifying Asset Sale.


 


(d)           Clause (j) in the
definition of “Consolidated EBITDA” is
revised in its entirety to read as follows:


 


“(j) any extraordinary or non-recurring
cash losses or expenses arising from restructuring not to exceed in the
aggregate since October 1, 2002 (A) if such period ends prior to
January 1, 2004, $8,600,000, (B) if such period begins on or after
January 1, 2004 and such period ends prior to January 1, 2006,
$14,600,000, (C) if such period begins on or after January 1, 2006,
$11,000,000 with respect to any such non-recurring cash losses or expenses
arising from the implementation of the Borrower’s plan known as “Project Arrow”
and related restructuring, $4,000,000 with respect to any such non-recurring
cash losses or expenses arising from the transition from H.J. Heinz Company to
ACH Food Companies, Inc. as exclusive distributor to Borrower and its
Subsidiaries in the United States; and any cash expenses incurred in connection
with any waiver of a Default or Event of Default and any amendment to this
Agreement, including the Limited Waiver and Fourth Amendment dated as of March 29,
2006, including the fees and expenses of any attorneys and financial advisers
retained by the Administrative Agent pursuant to Section 9.3 hereof with
respect to any such waiver or amendment;”


 


(e)           A new clause (n) is added to the definition of “Consolidated EBITDA” to read in as follows:


 


“and (n) expenses incurred by the
Borrower or any Subsidiary prior to January 1, 2007 in connection with the
development and commercialization of the all-natural, zero-calorie sweetener to
be marketed under the Sweet SimplicityTM
trademark, in an amount not to exceed in the aggregate $3,000,000.”


 


6

















 


(f)            The
definition of “Consolidated
Interest Expense” is revised in its entirety to
read as follows (with the amended language blacklined for convenience):


 


“Consolidated Interest Expense” means, for any period: (a) the
sum of (i) total cash interest expense (including that attributable to
Capital Lease Obligations) for such period (including all commissions,
discounts and other fees and charges associated with Indebtedness (including
the Loans) or owed with respect to letters of credit and bankers’ acceptance
financing, amortization or write-off of debt discount and debt issuance costs
and net costs under Interest Rate Contracts to the extent such net costs are
allocable to such period in accordance with GAAP) plus (ii) any interest
accrued during such period in respect of Indebtedness that is required to be
capitalized rather than included in consolidated interest for such period in
accordance with GAAP; MINUS (b) the sum of (i) net gains under Interest
Rate Contracts to the extent such gains are allocable to such period in
accordance with GAAP PLUS (ii) any cash interest income for such period, all
determined for the Borrower and its Subsidiaries on a consolidated basis in conformity
with GAAP.


 


(g)           Section 2.9(a) is
revised in its entirety to read as follows (with the new language underlined
for convenience):


 


“(a)         Upon
receipt by Holdings, the Borrower or any of its Subsidiaries of (i) Net
Cash Proceeds arising from an Asset Sale, Recovery Event or Debt Issuance, the
Borrower shall immediately prepay the Loans (or provide cash collateral in
respect of Letters of Credit) in an amount equal to 100% of such Net Cash
Proceeds; (ii) [Intentionally Deleted];
or
(iii) Net Cash Proceeds arising from an Equity Issuance, the Borrower
shall immediately prepay the Loans (or provide cash collateral in respect of
Letters of Credit) in an amount equal to 50% of such Net Cash Proceeds; or (iv) Net Cash Proceeds arising from the
Refinancing Transaction, the Borrower shall immediately prepay the Loans (or
provide cash collateral in respect of Letters of Credit) in an amount equal to
the Mandatory Prepayment Amount; provided, however, that in the case of any Net Cash Proceeds
constituting the Reinvestment Deferred Amount with respect to a Reinvestment
Event, the Borrower shall prepay the Loans (or provide cash collateral in
respect of Letters of Credit) in an amount equal to the Reinvestment Prepayment
Amount applicable to such Reinvestment Event, if any, on the Reinvestment
Prepayment Date with respect to such Reinvestment Event; provided, however, that the amount of Net
Cash Proceeds received in the same Fiscal Year from one or more Reinvestment
Events that may be specified as Reinvestment Deferred Amounts in one or more
Reinvestment Notices shall not exceed $20,000,000 in the aggregate for all such
Net Cash Proceeds so received. Any such mandatory prepayment shall be applied
in accordance with Section 2.9(c) below.


 


(h)           Section 2.9(c) is
revised in its entirety to read as follows (with the new language underlined
for convenience):


 


“(c)         Any
prepayments made by the Borrower required to be applied in accordance with this
Section 2.9(c) shall be applied as follows: first, to prepay the 


 


7

















 


outstanding principal balance of the Term Loans, until such Term Loans
shall have been prepaid in full; second,
to repay the outstanding principal balance of the Swing Loans, until such Swing
Loans shall have been repaid in full; third,
to repay the outstanding principal balance of the Revolving Loans, until such
Revolving Loans shall have been paid in full; and then, to provide cash collateral for any Letter of Credit
Obligations in the manner set forth in Section 7.3 until all such Letter
of Credit Obligations have been fully cash collateralized in the manner set
forth therein. All prepayments of the Term Loans made pursuant to this
Section 2.9 (other than with respect
to Section 2.9(a)(iv)) shall be applied to reduce ratably
the remaining installments of such outstanding principal amounts of the Term
Loans of both Tranches on a pro rata basis;
and all prepayments of the Term Loans pursuant to Section 2.9(a)(iv) shall
be applied to reduce the remaining installments of such outstanding principal
amounts of the Term Loans of both Tranches on a pro rata basis in the inverse
order of maturity. All repayments of Revolving Loans and Swing
Loans required to be made pursuant to Section 2.9(a) or (b) (or which
would be required to be made had the outstanding Revolving Loans and Swing
Loans equaled the Revolving Credit Commitments then in effect) shall result in
a permanent reduction of the Revolving Credit Commitments as provided in
Section 2.5(b).”


 


(i)            Section 2.9(f) is
revised in its entirety to read as follows:


 


“[Intentionally
Deleted.]”


 


(j)            Section 2.10(c) is
revised by adding the following paragraph to the end thereof:


 


“By written notice to the
Borrower given by the Administrative Agent acting upon the direction of the Requisite
Lenders, the Requisite Lenders may require the Borrower to pay, and the
Borrower shall pay, interest during the continuance of an Event of Default on
the principal amount of all outstanding Loans (a) prior to the Refinancing
Transaction Closing Date, at the highest rate set forth in each column of the
chart set forth in the definition of “Applicable Margin”, or (b) on
or after the Refinancing Transaction Closing Date, at the per annum rate equal
to the rate otherwise applicable to such Loan plus 2.00% per annum. This
paragraph is not intended to modify the preceding paragraph of this
Section 2.10(c), which governs the rate of interest on any principal of
any Loan that has become due and payable (the “Past Due Principal Rate”). For
purposes of clarity, it is agreed that at all times that the Past Due Principal
Rate is in effect with respect to any principal of any Loan pursuant to such
preceding paragraph, the interest rate payable in respect of such principal of
such Loan shall be governed by such preceding paragraph and not by this
paragraph.”


 


(k)           Section 2.12(b)(ii) is
revised by replacing the proviso at the end thereof with the following
language:


 


“provided, however, that during the
continuance of an Event of Default under Section 7.1(a) in respect of
principal or interest, such fee shall be increased by 2.00% per annum and shall
be payable on demand, and during the continuance of any other Event of Default,
by written notice to the Borrower given by the Administrative Agent
acting upon 


 


8

















 


the direction of the Requisite
Lenders, the Requisite Lenders may require that (a) prior to
the Refinancing Transaction Closing Date, such fee shall be equal to the
highest rate for LIBO Rate Loans set forth on the chart set forth in the
definition of “Applicable Margin” and shall be payable on demand, or
(b) on or after the Refinancing Transaction Closing Date, such fee shall
be increased to the per annum rate equal to the rate otherwise applicable to
such fee plus 2.00% per annum and shall be payable on demand.”


 


(l)            Section 4.22 is
amended in its entirety to read as follows:


 


Section 4.22 Proprietary Rights; Foreign Trademarks.


 


(a)
Either the Borrower or a Wholly Owned Subsidiary of the Borrower owns all
proprietary rights to any products (including without limitation sweetener
products) with respect to which the Borrower, Holdings, or any of their
respective Subsidiaries has made or incurred any expenditures, direct or
indirect, including without limitation overhead, or permitted their employees
to devote any of their time to developing, marketing, manufacturing, or
distributing.


 


(b)
Schedule 4.22 (together with any future written updates that Borrower
delivers to the Administrative Agent) sets forth a true and complete list of
each of the Foreign Trademarks.


 


(m)          A new Section 5.13 is added as
follows:


 


Section 5.13
Corporate Restructuring. The Borrower shall use
diligent efforts to undertake such corporate actions, including, without
limitation, the consolidation or dissolution of intermediary Foreign
Subsidiaries as may be necessary and prudent to result in all of the Capital
Stock of SwissCo 2 being owned directly by a Loan Party. To the extent that,
and only for so long as, SwissCo 2’s payment of dividends to the Borrower would
be (i) adverse to the Borrower’s business, property, operations or
condition (financial or otherwise), (ii) not permitted by applicable law or
(iii) subject to any necessary corporate or governmental approvals that
have not been received and remain in effect, SwissCo 2 may make loans to the
Borrower pursuant to the SwissCo Note in lieu of paying dividends.


 


(n)           Section 6.1 is
amended in its entirety to read as follows:


 


(a)           Consolidated Leverage Ratio. Each of the
Borrower and Holdings will not, and will not permit any of its Subsidiaries to,
directly or indirectly, permit the Consolidated Leverage Ratio as at the last
day of any period of four consecutive Fiscal Quarters of the Borrower ending
with any Fiscal Quarter set forth below to exceed the ratio set forth below
opposite such Fiscal Quarter:


 


9

















 




	
  Quarter-End 

  Date

  	
   

  	
  Consolidated 

  Leverage 

  Ratio

  	
   

  
	
  December 31, 2005

  	
   

  	
  9.80x

  	
   

  
	
  March 31, 2006

  	
   

  	
  9.80x

  	
   

  
	
  June 30, 2006

  	
   

  	
  9.80x

  	
   

  
	
  September 30, 2006

  	
   

  	
  9.80x

  	
   

  
	
  December 31, 2006

  	
   

  	
  9.80x

  	
   

  
	
  March 31, 2007

  	
   

  	
  8.00x

  	
   

  
	
  June 30, 2007

  	
   

  	
  8.00x

  	
   

  
	
  September 30, 2007

  	
   

  	
  7.50x

  	
   

  
	
  December 31, 2007

  	
   

  	
  7.50x

  	
   

  
	
  March 31, 2008

  	
   

  	
  7.50x

  	
   

  
	
  June 30, 2008

  	
   

  	
  7.25x

  	
   

  
	
  September 30, 2008

  	
   

  	
  7.25x

  	
   

  
	
  December 31, 2008

  	
   

  	
  7.00x

  	
   

  
	
  March 31, 2009 and thereafter

  	
   

  	
  7.00x

  	
   

  






 


(b)           Consolidated Interest Coverage Ratio. Each
of the Borrower and Holdings will not, and will not permit any of its
Subsidiaries to, directly or indirectly, permit the Consolidated Interest
Coverage Ratio for any period of four consecutive Fiscal Quarters of the
Borrower ending with any Fiscal Quarter set forth below to be less than the
ratio set forth below opposite such Fiscal Quarter:


 




	
  Quarter-End 

  Date

  	
   

  	
  Consolidated 

  Interest Coverage 

  Ratio

  	
   

  
	
  December 31, 2005

  	
   

  	
  1.00x

  	
   

  
	
  March 31, 2006

  	
   

  	
  1.00x

  	
   

  
	
  June 30, 2006

  	
   

  	
  1.00x

  	
   

  
	
  September 30, 2006

  	
   

  	
  1.00x

  	
   

  
	
  December 31, 2006

  	
   

  	
  1.00x

  	
   

  
	
  March 31, 2007

  	
   

  	
  1.20x

  	
   

  
	
  June 30, 2007

  	
   

  	
  1.20x

  	
   

  
	
  September 30, 2007

  	
   

  	
  1.30x

  	
   

  
	
  December 31, 2007

  	
   

  	
  1.30x

  	
   

  
	
  March 31, 2008

  	
   

  	
  1.30x

  	
   

  
	
  June 30, 2008

  	
   

  	
  1.30x

  	
   

  
	
  September 30, 2008

  	
   

  	
  1.35x

  	
   

  
	
  December 31, 2008

  	
   

  	
  1.35x

  	
   

  
	
  March 31, 2009 and thereafter

  	
   

  	
  1.40x

  	
   

  






 


10

















 


(c)           Consolidated Fixed Charge Coverage Ratio. Each
of the Borrower and Holdings will not, and will not permit any of its
Subsidiaries to, directly or indirectly, permit the Consolidated Fixed Charge
Coverage Ratio for any period of four consecutive Fiscal Quarters of the
Borrower ending with any Fiscal Quarter set forth below to be less than the ratio
set forth below opposite such Fiscal Quarter:


 




	
  Quarter-End 

  Date

  	
   

  	
  Consolidated 

  Fixed Charge Coverage 

  Ratio

  	
   

  
	
  December 31, 2005

  	
   

  	
  0.65x

  	
   

  
	
  March 31, 2006

  	
   

  	
  0.65x

  	
   

  
	
  June 30, 2006

  	
   

  	
  0.65x

  	
   

  
	
  September 30, 2006

  	
   

  	
  0.65x

  	
   

  
	
  December 31, 2006

  	
   

  	
  0.65x

  	
   

  
	
  March 31, 2007

  	
   

  	
  0.75x

  	
   

  
	
  June 30, 2007

  	
   

  	
  0.75x

  	
   

  
	
  September 30, 2007

  	
   

  	
  0.80x

  	
   

  
	
  December 31, 2007

  	
   

  	
  0.80x

  	
   

  
	
  March 31, 2008

  	
   

  	
  0.80x

  	
   

  
	
  June 30, 2008

  	
   

  	
  0.80x

  	
   

  
	
  September 30, 2008

  	
   

  	
  0.80x

  	
   

  
	
  December 31, 2008

  	
   

  	
  0.80x

  	
   

  
	
  March 31, 2009 and thereafter

  	
   

  	
  0.80x

  	
   

  






 


(d)           Consolidated Senior Leverage Ratio. Each
of the Borrower and Holdings will not, and will not permit any of its
Subsidiaries to, directly or indirectly, permit the Consolidated Senior
Leverage Ratio for any period of four consecutive Fiscal Quarters of the Borrower
ending with any Fiscal Quarter set forth below to exceed the ratio set forth
below opposite such Fiscal Quarter:


 




	
  Quarter-End 

  Date

  	
   

  	
  Consolidated 

  Senior Leverage 

  Ratio

  	
   

  
	
  December 31, 2005

  	
   

  	
  6.00x

  	
   

  
	
  March 31, 2006

  	
   

  	
  6.00x

  	
   

  
	
  June 30, 2006

  	
   

  	
  6.00x

  	
   

  
	
  September 30,
  2006

  	
   

  	
  6.00x

  	
   

  
	
  December 31,
  2006

  	
   

  	
  5.25x

  	
   

  
	
  March 31, 2007

  	
   

  	
  5.00x

  	
   

  
	
  June 30, 2007

  	
   

  	
  5.00x

  	
   

  
	
  September
  30, 2007

  	
   

  	
  5.00x

  	
   

  
	
  December 31, 2007

  	
   

  	
  5.00x

  	
   

  
	
  March 31, 2008

  	
   

  	
  5.00x

  	
   

  
	
  June 30, 2008

  	
   

  	
  4.75x

  	
   

  






 


11

















 




	
  Quarter-End 

  Date

  	
   

  	
  Consolidated 

  Senior Leverage 

  Ratio

  	
   

  
	
  September 30, 2008

  	
   

  	
  4.75x

  	
   

  
	
  December 31, 2008

  	
   

  	
  4.75x

  	
   

  
	
  March 31, 2009 and thereafter

  	
   

  	
  4.60x

  	
   

  






 


(e)           Minimum Consolidated EBITDA. During the
period commencing on March 29, 2006 to, but not including the Refinancing
Transaction Closing Date, each of the Borrower and Holdings will not, and will
not permit any of its Subsidiaries to, directly or indirectly, permit
Consolidated EBITDA for any period set forth in the table below to be less than
the applicable corresponding amount set forth below. This test will not be
applicable after the Refinancing Transaction Closing Date.


 


	
  Period

  	
   

  	
  Consolidated 

  EBITDA

  	
   

  
	
  The Fiscal Quarter ending March 31, 2006

  	
   

  	
  $

  	
  5,400,000

  	
   

  
	
  The two Fiscal Quarters ending June 30,
  2006

  	
   

  	
  $

  	
  16,600,000

  	
   

  
	
  The three Fiscal Quarters ending September
  30, 2006

  	
   

  	
  $

  	
  32,500,000

  	
   

  



 


(f)            One-Time Consolidated First Lien Leverage Ratio.
Simultaneously with the closing of any Refinancing Transaction, the Borrower
shall deliver a certificate of a Responsible Officer stating that, as of such
date, after giving effect to the application of the proceeds of such
Refinancing Transaction, the One-Time Consolidated First Lien Leverage Ratio
for the period of four consecutive Fiscal Quarters ending immediately prior to
such day is less than or equal to 3.00x.


 


(g)           Consolidated First Lien Leverage Ratio. Following
the closing of any Refinancing Transaction, each of the Borrower and Holdings
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, permit the Consolidated First Lien Leverage Ratio for any four
consecutive Fiscal Quarters of the Borrower ending with any Fiscal Quarter set
forth below to exceed the ratio set forth below opposite such Fiscal Quarter.
This test will not be applicable prior to the Refinancing Transaction Closing
Date.


 




	
  Quarter-End 

  Date

  	
   

  	
  Consolidated 

  First Lien Leverage 

  Ratio

  	
   

  
	
  June 30, 2006 (if any Refinancing
  Transaction shall have closed prior to such date)

  	
   

  	
  3.25x

  	
   

  
	
  September 30, 2006 (if any Refinancing
  Transaction shall have closed prior to such date)

  	
   

  	
  3.25x

  	
   

  






 


12

















 




	
  Quarter-End 

  Date

  	
   

  	
  Consolidated 

  First Lien Leverage 

  Ratio

  	
   

  
	
  December 31, 2006 (if any Refinancing
  Transaction shall have closed prior to such date)

  	
   

  	
  3.00x

  	
   

  
	
  March 31, 2007

  	
   

  	
  3.00x

  	
   

  
	
  June 30, 2007

  	
   

  	
  2.50x

  	
   

  
	
  September 30, 2007

  	
   

  	
  2.50x

  	
   

  
	
  December 31, 2007

  	
   

  	
  2.50x

  	
   

  
	
  March 31, 2008

  	
   

  	
  2.50x

  	
   

  
	
  June 30, 2008

  	
   

  	
  2.50x

  	
   

  
	
  September 30, 2008

  	
   

  	
  2.50x

  	
   

  
	
  December 31, 2008

  	
   

  	
  2.50x

  	
   

  
	
  March 31, 2009 and thereafter

  	
   

  	
  2.25x

  	
   

  






 


(o)           Section 6.2 is
amended in its entirety to read as follows (with the new language underlined
for convenience):


 


Section 6.2            Indebtedness. Each of the Borrower and
Holdings will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create, issue, incur, assume, become liable in respect of or suffer
to exist any Indebtedness, except:


 


(i)            Indebtedness
of any Loan Party pursuant to any Loan Document;


 


(ii)           Indebtedness
(v) of the Borrower to SwissCo 2 from time
to time in an aggregate principal amount not to exceed $200,000,000, plus
accrued interest thereon, pursuant to the SwissCo 2 Revolving Note, (w) of
Holdings to Borrower permitted under Section 6.6(iii) hereof,
(x) of the Borrower to any Wholly Owned Subsidiary Guarantor or of any
Wholly Owned Subsidiary Guarantor to the Borrower or any Wholly Owned
Subsidiary Guarantor, (y) of any Excluded Foreign Subsidiary to any other
Excluded Foreign Subsidiary or (z) of any Excluded Foreign Subsidiary to
the Borrower or any Subsidiary Guarantor provided,
however, that the Investment in the intercompany loan to such
Excluded Foreign Subsidiary pursuant to this subclause (ii)(z) is
permitted under Section 6.8(vii)(z) or Section 6.8(xii);


 


(iii)          Guarantee
Obligations incurred in the ordinary course of business by the Borrower or any
of its Subsidiaries of obligations of any Subsidiary; provided that the amount
of any such obligation guaranteed by the Borrower or any of its Subsidiaries
shall not exceed $1,000,000 in the aggregate for the Borrower and all of its
Subsidiaries;


 


13

















 


(iv)          Indebtedness
(other than Hedging Contracts or the Senior Subordinated Initial Notes)
outstanding on March 29, 2006 and listed on Schedule 6.2 and any
refinancings, refundings, renewals or extensions thereof (that does not
shorten the maturity of, or increase the principal amount of (other than to
include any premium or fee payable in connection with such refinancing,
refunding, renewal or extension), and that otherwise is on terms no less
favorable to the Borrower or such Subsidiary (taken as a whole) than, the
Indebtedness being refinanced, refunded, renewed or extended;


 


(v)           Indebtedness
(including, without limitation, Capital Lease Obligations) secured by Liens
permitted by Section 6.3(vi) in an aggregate principal amount not to
exceed $2,000,000 at any one time outstanding; provided, that, during the period commencing on March 29, 2006 to but
not including the Refinancing Transaction Closing Date, Borrower shall only be
permitted to maintain Capital Lease Obligations that are in existence as of
March 29, 2006 and are listed on Schedule 6.2(v), and to incur additional
Capital Lease Obligations relating to the information technology of Borrower or
its Subsidiary Guarantors;


 


(vi)          [Intentionally Deleted.];


 


(vii)         Interest
Rate Contracts outstanding on the date hereof and listed on Schedule 6.2
in respect of Indebtedness that bears interest at a floating rate, so long as
such agreements are not entered into for speculative purposes and are either
(x) with a Lender as counterparty or (y) are unsecured;


 


(viii)        Foreign
Overdraft Guarantees in an aggregate amount not to exceed $510 million at any time
outstanding, provided that no such Guarantee Obligation shall be outstanding
for more than two Business Days after the date of incurrence thereof, provided, however,
that, during the period commencing on March 29, 2006 to but not including the
Refinancing Transaction Closing Date, no Foreign Overdraft Guarantees shall be
permitted to be incurred or outstanding;


 


(ix)           in
addition to Indebtedness otherwise expressly permitted by this
Section 6.2, Indebtedness incurred by the Borrower or any of its
Subsidiaries in an aggregate amount not to exceed $5,000,000 at any one time
outstanding, provided, however, that, during the period commencing on
March 29, 2006 to but not including the Refinancing Transaction Closing Date,
no Indebtedness may be incurred pursuant to this clause (ix);


 


(x)            Indebtedness
of the Borrower and the Subsidiary Guarantors consisting of the Senior
Subordinated Initial Notes issued by the Borrower (and guaranteed by the
Subsidiary Guarantors) under the Senior Subordinated Notes Indenture;


 


14

















 


(xi)           [Intentionally Deleted.];


 


(xii)          any
Indebtedness of Holdings consisting of Holdings Permitted PIK Notes the
aggregate principal amount of which (excluding the principal amount of any such
Holdings Permitted PIK Notes duly issued as pay-in-kind notes in lieu of
payment of cash interest thereon), when added to the liquidation preference of
any Holdings Permitted Preferred Stock issued on or after the Closing Date,
does not exceed $100,000,000 in the aggregate for all Holdings Permitted PIK
Notes and Holdings Permitted Preferred Stock issued on or after the Closing
Date;


 


(xiii)         Indebtedness
of (x) the Borrower or any Subsidiary of the Borrower assumed in
connection with any acquisition of the assets of any Person pursuant to an
Investment permitted under Section 6.8(x) or (y) a Person that
becomes a direct or indirect Wholly Owned Subsidiary as a result of any
acquisition pursuant to an Investment permitted under Section 6.8(x), so
long as, in the case of clause (x) or (y), such Indebtedness existed
immediately prior to such acquisition and was not created in anticipation of
such acquisition, and any refinancing, refunding, renewal or extension thereof
(that does not shorten the maturity of, or increase the principal amount of
(other than to include any customary premium or fee payable in connection with
such refinancing, refunding, renewal or extension), and that otherwise is on
terms no less favorable to the Borrower or such Subsidiary (taken as a whole)
than, the Indebtedness being refinanced, refunded, renewed or extended; provided, however,
that the aggregate amount of all such Indebtedness of the Borrower and its
Subsidiaries pursuant to this clause (xiii) does not exceed $30,000,000
outstanding at any time; provided, however, that, during the period commencing
on March 29, 2006 to but not including the Refinancing Transaction Closing
Date, no Indebtedness may be incurred pursuant to this clause (xiii); and


 


(xiv)        Indebtedness of the 
Borrower and the Subsidiary Guarantors consisting of Permitted Junior
Lien Indebtedness; and


 


(xv)         Guarantee
Obligations (x) by any Loan Party of any Indebtedness of any Loan Party
incurred pursuant to Section 6.2(ix)
or 6.2(xiv) or (y) by any Excluded Foreign Subsidiary of
any Indebtedness of any Excluded Foreign Subsidiary incurred pursuant to clause
Section 6.2(ix).


 


(p)           Section 6.3 is
amended to revise the following provisions:


 


(i)            Section 6.3(ix) and Section 6.3(x) are amended in their entirety to read as follows:


 


“[Intentionally
Deleted.]”


 


(ii)           In Section 6.3(xi), the word “and” at the end of the paragraph is hereby deleted.


 


15

















 


(iii)          In Section 6.3(xii), the “.” at the end of the paragraph is hereby deleted and replaced with “;”.


 


(iv)          A new Section 6.3(xiii) is hereby added to read as follows:


 


“Liens
that secure Indebtedness permitted under Section 6.2(xiv); and”


 


(v)           A new Section 6.3(xiv) is hereby added to read as follows:


 


“an escrow account with a nationally
recognized financial institution designated by the Borrower into which the
Borrower or a Subsidiary of the Borrower may deposit an amount up to $3,000,000
in connection with a termination agreement entered into with H.J. Heinz Company
for the purpose of reimbursing H.J. Heinz Company for promotional allowances
incurred in accordance with the distribution agreements by and between Merisant
US, Inc. and Heinz U.S.A., a division of H.J. Heinz Company, for a period of
time after the termination of such distribution agreements not to exceed ninety
(90) days, except that up to $500,000 may be retained in such escrow account
for up to an additional forty-five (45) days.”


 


(q)           Sections 6.5(v), (vi) and (viii) are amended in their entirety to read as follows:


 


“[Intentionally
Deleted.]”


 


(r)            Section 6.5(vii) is
amended in its entirety to read as follows:


 


“(vii)       the
Disposition of other property (other than Capital Stock of the Borrower or any
Included Subsidiary) having a Fair Market Value not to exceed $1025,000,000 in the aggregate
for all such Dispositions in any Fiscal Year; provided, however, that, during the period
commencing on March 29, 2006 to but not including the Refinancing Transaction
Closing Date no Dispositions shall be permitted pursuant to the foregoing
provisions of this clause (vii); provided further that, Dispositions
related to the Borrower’s plan known as “Project Arrow” and related
restructuring, shall be permitted notwithstanding the foregoing provisions of
this clause (vii).”


 


(s)           Section 6.6(ii) is
amended in its entirety to read as follows:


 


“(ii)         the
Borrower may pay dividends to Holdings to permit Holdings to accrue management
fees expressly permitted by the last sentence of Section 6.10; provided,
that such accrued management fees shall not be payable or paid until all
Obligations have been repaid in full and all Commitments have been cancelled or
terminated;”


 


(t)            Section 6.6(iii) is
amended in its entirety to read as follows:


 


“(iii)        the
Borrower may:


 


16

















 


(x)            pay
dividends to Holdings to permit Holdings to pay:  (1) corporate overhead expenses incurred in
the ordinary course of business; and (2) any taxes that are due and payable by
Holdings and the Borrower as part of a consolidated, combined or unitary group,
provided that the aggregate amount of the payments in clauses (1) and (2) above
shall not  exceed $500,000 in any Fiscal
Year; and provided further that, notwithstanding anything to the contrary in
this Section 6.6(iii)(x):


 


(A)          transfers
during Fiscal Year 2006 for the purposes set forth in clause (1) above may be
made in an aggregate amount up to $780,000 in the form of loans or in the form
of dividends by the Borrower to Holdings, and may be used (i) to pay corporate
overhead expenses incurred and accrued during fiscal year 2005 for printing fees
for registration of the exchange offer for Holdings’ Senior Subordinated
Discount Notes, legal fees, audit fees, tax advice, and printing fees,
accounting fees and filing fees in connection with 10-Q and 8-K filings, and
(ii) to pay corporate overhead expenses incurred in the ordinary course of
business in  fiscal year 2006;  and


 


(B)           transfers
made during fiscal year 2006 for the purposes set forth in clause (2) above may
be made in the form of loans or in the form of dividends by the Borrower to
Holdings, so long as the aggregate principal amount of such loans does not
exceed $100,000; and


 


(y)           pay
dividends to Holdings or make loans to Holdings to permit Holdings to pay any
IDS Transaction Expenses not to exceed in the aggregate $50,000;”


 


(u)           Section 6.6(vi) is
amended in its entirety to read as follows:


 


“(vi)        the
Borrower may repay up to an aggregate of $2,000,000 per year of the
Indebtedness under the SwissCo 2 Revolving Note.”


 


(v)           Section 6.8, clauses (v) - (xi) are amended in their entirety to read as follows:


 


“(v)         [Intentionally Deleted];


 


(vi)          investments
in assets useful in the business of the Borrower and its Subsidiaries made by
the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment
Deferred Amount;


 


(vii)         intercompany
Investments by (x) Holdings, the Borrower or any of its Subsidiaries in
the Borrower or any Person that, prior to and immediately after such
Investment, is a Wholly Owned Subsidiary Guarantor; (y) any Excluded
Foreign Subsidiary in any other Excluded Foreign Subsidiary; and (z) the 


 


17

















 


Borrower or any Subsidiary Guarantor in any Excluded Foreign
Subsidiary, provided, however, that the aggregate outstanding
amount of any Investments pursuant to this subclause (vii)(z) shall not exceed
$15,000,000 at any one time outstanding, provided, however,
that, during the period commencing on March 29, 2006 to but not including the
Refinancing Transaction Closing Date, such $15,000,000 shall be reduced to
$5,000,000;


 


(viii)        any
Indebtedness permitted by Section 6.2(ii);


 


(ix)           [Intentionally Deleted];


 


(x)            in
addition to Investments otherwise expressly permitted by this Section,
Investments by the Borrower or any of its Subsidiaries in an aggregate amount
(valued at cost) not to exceed $10,000,000 per Fiscal Year and $30,000,000 in
the aggregate during the period beginning on the Closing Date and ending on the
Tranche B Term Loan Maturity Date; provided,
however, that in the case of any acquisition pursuant to an
Investment permitted under this Section 6.8(x), the cost of such Investment
shall include the amount of any Indebtedness permitted under Section 6.2(xiii)
that is assumed by the Borrower or any of its Subsidiaries in connection with,
or of any Person that becomes a Wholly Owned Subsidiary as a result of, such
acquisition; provided, however,
that, during the period commencing on March 29, 2006 to but not including the
Refinancing Transaction Closing Date, such $30,000,000 shall be reduced to
$5,000,000;


 


(xi)           loans
made by the Borrower to members of its senior management and evidenced by
promissory notes in an aggregate amount not exceeding the amount shown on Schedule 6.8(xi) which is
currently outstanding as of March 29, 2006 $5,500,000 during
the period beginning on the Formation Date and ending on the Tranche B Term
Loan Maturity Date to the extent such loans are not in violation of the
Sarbanes-Oxley Act, provided that such promissory notes shall have been and shall be delivered to the
Administrative Agent to be held in pledge for the benefit of the Secured
Parties as Collateral under the Security Agreement;”


 


(w)          A new Section 6.8(xiv) is added as follows:


 


“(xiv)      Investments
by the Borrower in the limited liability company interests of Whole Earth
Sweetener Company LLC pursuant to a purchase and sale agreement with terms
satisfactory to the Requisite Lenders and containing an aggregate purchase
price not to exceed $1,000.”


 


(x)            Section 6.9
(Special Purpose Subsidiary) is amended in its entirety to read as follows:


 


“[Intentionally
Deleted]”


 


(y)           Section 6.11 is
hereby amended to add the following to the end of the paragraph:


 


18

















 


“; provided, however,
that, during the period commencing on March 29, 2006 to but not including the
Refinancing Transaction Closing Date, no transactions of the nature described
in this Section 6.11 shall be permitted.”


 


(z)            Section 6.16
(Amendments to the SwissCo Intercompany Note; Principal Amount) is amended in
its entirety to read as follows:


 


“[Intentionally
Deleted]”


 


(aa)         A new Section 6.19 is hereby added to read as follows:


 


“Section 6.19 
Restriction Regarding New Ventures.
Each of Holdings and the Borrower will not, and will not permit any of their
respective Subsidiaries to, directly or indirectly, make or incur any
expenditures, including without limitation overhead, in connection with, or
permit any of their employees or management to devote any of their time to, the
development, marketing, manufacturing, or distribution of any products
(including, without limitation, sweetener products), or any other related or
similar function, unless all proprietary rights to such products are wholly
owned by the Borrower or a Wholly Owned Subsidiary of Borrower; provided, that,
this Section 6.19 shall
not apply to transactions with entities that are not Affiliates of the Borrower
that are consistent with practices in the ordinary course of Borrower’s
business or otherwise consistent with Borrower’s existing manufacturing
production methods, lines of business, and products. Notwithstanding the
foregoing, this Section shall not be deemed to limit ownership of proprietary
rights by Merisant Sweetener (Philippines), Inc. (“Merisant Philippines”)  and wholly owned Subsidiaries
of Merisant Philippines pertaining to conduct of business in the Philippines.”


 


(bb)         Section 7.1(m) is
hereby amended to change the “.” and the end of the sentence to “;” and add the
word “or” at the end of the paragraph.


 


(cc)         A new Section 7.1(n) is hereby added to read as follows:


 


“(n)         Borrower
shall fail to close the Refinancing Transaction on or prior to January 2,
2007.”


 


(dd)         Section 7.4 is
amended in its entirety to read as follows:


 


“[Intentionally
Deleted]”


 


(ee)         Schedule 6.2  is replaced in its entirety with amended Schedule 6.2
in the form attached hereto, and new Schedules 6.2(v), 6.2(xiv), and 6.8(xi) are added in the form attached hereto and incorporated herein and in the
Credit Agreement for all purposes.


 


3.2.         Effectiveness.
This Amendment shall become
effective as of the first date (the “Amendment
Effective Date”) on which
each of the following conditions is satisfied:


 


19

















 


(a)           there
shall have been delivered to the Administrative Agent in accordance with Section 4.5 counterparts of this Amendment executed by each of the Requisite Lenders,
the Borrower and Holdings;


 


(b)           the
Administrative Agent and the Arranger shall have received all fees and accrued
and unpaid costs and expenses (including reasonable legal fees and expenses)
required to be paid on or prior to the Amendment Effective Date pursuant to (y)
the Credit Agreement or (z) this Amendment;


 


(c)           the
Administrative Agent shall have received, for the account of the Lenders, the
amendment fee required to be paid pursuant to Section 5.8 hereof on or prior to the Amendment Effective Date;


 


(d)           the
Borrower shall have acquired all of the equity interests in Whole Earth
Sweetener Company LLC (“Whole Earth”) pursuant to acquisition agreements satisfactory to the Requisite
Lenders, and Whole Earth shall be a Wholly Owned Subsidiary of the Borrower;


 


(e)           the
Borrower shall have delivered documentation pertaining to Collateral as set
forth on Annex 1 attached hereto by the applicable dates set forth on such Annex (or such
other dates permitted by the Requisite Lenders), together with legal opinions;
and


 


(f)            the
Borrower shall have delivered opinions of counsel to the Loan Parties.


 


ARTICLE 4


REPRESENTATIONS AND WARRANTIES AND COVENANT


 


4.1.         Representations and
Warranties. To induce
the Lenders and the Administrative Agent to enter into this Amendment, the
Borrower and Holdings, jointly and severally, represents and warrants to the
Administrative Agent, each Issuer and each Lender that:


 


(a)           The
representations and warranties of each of the Borrower and Holdings in Article IV of the Credit Agreement and the covenants set forth in Section 6.19 of the Credit Agreement are on the date of execution and delivery of this
Amendment, and will be on the Amendment Effective Date, true, correct and
complete in all material respects with the same effect as though made on and as
of such respective date (or, to the extent such representations and warranties
expressly relate to an earlier date, on and as of such earlier date).


 


(b)           Each of
the Borrower and Holdings is in compliance in all material respects with all
the terms and provisions set forth in the Credit Agreement and in each other
Loan Document on its part to be observed or performed; and, except as specified
and waived in Article 2 hereof, no Default or Event of Default has occurred and is continuing.


 


(c)           The
execution, delivery and performance by the Borrower and Holdings of this
Amendment:


 


(i)            are
within such Person’s  corporate powers;


 


20

















 


(ii)           have
been duly authorized by all necessary corporate or other entity action,
including the consent of the holders of its equity interests where required;


 


(iii)          do not
and will not (A) contravene the certificate of incorporation or by-laws of
such Person, (B) violate any other applicable requirement of law
applicable to such Person or any order or decree of any governmental authority
or arbitrator applicable to such Person, (C) conflict with or result in
the breach of, or constitute a default under, or result in or permit the
termination or acceleration of, any contractual obligation of such Person or
any of its Subsidiaries, or (D) result in the creation or imposition of
any Lien upon any of the property of such Person or any of its Subsidiaries
other than those Liens permitted by the Loan Documents; and


 


(iv)          do not
and will not require the consent of, authorization by, approval of, notice to,
or filing or registration with, any governmental authority or any other person,
other than those which prior to the Amendment Effective Date will have been
obtained or made and copies of which prior to the Amendment Effective Date will
have been delivered to the Administrative Agent and each of which on the
Amendment Effective Date will be in full force and effect.


 


(d)           No
action, suit, investigation, or proceeding exists or is threatened, of the type
described in Section 4.6 of the Credit Agreement or that seeks to affect any transaction
contemplated by this Amendment or permitted herein.


 


(e)           This
Amendment has been duly executed and delivered by the Borrower and Holdings. Each
of this Amendment and the Credit Agreement constitutes the legal, valid and
binding obligation of the Borrower and Holdings, enforceable against such
Person in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
limiting creditors’ rights generally or by equitable principles relating to
enforceability.


 


(f)            The
representations and warranties of the Borrower and Holdings in clauses (b) through (e) of this Section 4.1 will be on the Amendment Effective Date true, correct and complete with
the same effect as though made on and as of the Amendment Effective Date.


 


4.2.         Survival. The representations and warranties in Section 4.1 shall
survive the execution and delivery of this Amendment and the Amendment
Effective Date.


 


4.3.         Post-Closing
Covenant. The Borrower agrees to provide the
documents required pursuant to Section B of Annex 1 attached hereto, within the time
period set forth therein (or such other time period as may be requested by the
Borrower and agreed by the Requisite Lenders). Failure to provide such
documents within such time period shall constitute an Event of Default under
the Credit Agreement.


 


21

















 


ARTICLE 5


MISCELLANEOUS


 


5.1.         No Other Amendments;
Reservation of Rights; No Waiver. Other than as otherwise expressly provided herein,
this Amendment shall not be deemed to operate as an amendment or waiver of, or
to prejudice, any right, power, privilege or remedy of any Secured Party under
the Credit Agreement or any other Loan Document, nor shall the entering into of
this Amendment preclude any Secured Party from refusing to enter into any further
amendments with respect to the Credit Agreement or any other Loan Document. Except
as specified in Article 2, this Amendment shall not constitute a waiver of
compliance (i) with any covenant or other provision in the Credit
Agreement or any other Loan Document or (ii) of the occurrence or
continuance of any present or future Default or Event of Default.


 


5.2.         Ratification and
Confirmation. Except as
expressly set forth in this Amendment, the terms, provisions and conditions of
the Credit Agreement and the other Loan Documents are hereby ratified and
confirmed and shall remain unchanged and in full force and effect without
interruption or impairment of any kind.


 


5.3.         Governing Law. This Amendment will be governed by and construed in
accordance with the laws of the State of New York.


 


5.4.         Headings. The article and section headings contained in this
Amendment are inserted for convenience only and will not affect in any way the
meaning or interpretation of this Amendment.


 


5.5.         Counterparts. This Amendment may be executed in two or more
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument. This Amendment may be
delivered by exchange of copies of the signature page by facsimile transmission.


 


5.6.         Severability. The provisions of this Amendment will be deemed
severable and the invalidity or unenforceability of any provision will not
affect the validity or enforceability of the other provisions hereof; provided
that if any provision of this Amendment, as applied to any party or to any
circumstance, is judicially determined not to be enforceable in accordance with
its terms, the parties agree that the court judicially making such
determination may modify the provision in a manner consistent with its
objectives such that it is enforceable, and/or to delete specific words or
phrases, and in its modified form, such provision will then be enforceable and
will be enforced.


 


5.7.         Amendment. This Amendment may not be amended or modified except
in the manner specified for an amendment of or modification to the Credit
Agreement in Section 9.1 of the Credit Agreement.


 


5.8.         Costs; Expenses;
Amendment Fee. Regardless of whether the transactions
contemplated by this Amendment are consummated, the Borrower and Holdings, jointly and severally,
agree to pay to the Administrative Agent on demand all out-of-pocket costs
and expenses of the Administrative Agent incurred in connection with the
preparation, execution and 


 


22

















 


delivery of this Amendment, including the fees and
expenses of legal counsel to the Administrative Agent. The Borrower and Holdings, jointly and severally,
agree to pay to the Administrative Agent for the account of each Lender on or
prior to the Amendment Effective Date, an amendment fee equal to the product of
(x) 12.5 basis points (0.125%) and (y) the Dollar Equivalent of the
sum of the principal amount of all Term Loans of such Lender then outstanding
on such date and the Revolving Credit Commitment of such Lender on such date,
which fee shall be earned, due and payable on the Amendment Effective Date. If
any Lender shall not have executed this Amendment prior to 5:00 p.m., Dallas,
Texas time, on March 30, 2006, the Administrative Agent shall promptly refund
such Lender’s portion of the amendment fee to Borrower without interest.


 


5.9.         Assignment; Binding Effect.
No party may assign either this
Amendment or any of its rights, interests or obligations hereunder except in
the manner specified for an assignment in respect of the Credit Agreement in Section 9.2 of the
Credit Agreement. All of the terms, agreements, covenants, representations,
warranties and conditions of this Amendment are binding upon, and inure to the
benefit of and are enforceable by, the parties and their respective successors
and permitted assigns.


 


5.10.       Waiver of Claims. Each of the Borrower and Holdings
acknowledges and agrees that, as of the date hereof: (a) none of the
Borrower, Holdings, or, to the knowledge of the Borrower, any of their
Subsidiaries or Affiliates has any claim or cause of action against any of the
Lenders or the Administrative Agent, the Arranger, the Syndication Agent or the
Co-Documentation Agents (collectively, the “Agents”), or any of their directors, officers,
employees, attorneys or agents; (b) none of the Borrower, Holdings or, to
the knowledge of the Borrower, any of their Subsidiaries or Affiliates has
offset rights, counterclaims or defenses of any kind against any of their
obligations, indebtedness or liabilities to any of the Lenders or the Agents;
and (c) each of the Lenders and the Agents has heretofore properly
performed and satisfied in a timely manner all of its obligations to the
Borrower, Holdings and, to the knowledge of the Borrower, each of their
Subsidiaries and Affiliates. The Lenders and the Agents wish (and the Borrower
and Holdings agree) to eliminate any possibility that any past conditions,
acts, omissions, events, circumstances or matters would impair or otherwise
adversely affect any of the rights, interests, contracts, collateral security
or remedies of the Lenders or the Agents. Therefore, each of the Borrower and
Holdings on its own behalf and on behalf of each of its respective successors
and assigns, hereby waives, releases and discharges the Lenders and the Agents
and all of their directors, officers, employees, attorneys and agents, from any
and all claims, demands, actions or causes of action existing as of the date of
this Amendment and arising out of or in any way relating to the Loan Documents
and any documents, instruments, agreements (including this Amendment), dealings
or other matters connected with the Loan Documents, including, without
limitation, all known and unknown matters, claims, transactions or things occurring
on or prior to the date of this Amendment related to the Loan Documents. The
waivers, releases, and discharges in this paragraph shall be effective
regardless of any other event that may occur or not occur prior to or on the
date hereof.


 


5.11.       Loan
Document. This Amendment constitutes a Loan
Document as defined in the Credit Agreement.


 


23

















 


5.12.       Entire Agreement. The Credit Agreement as amended by this Amendment,
together with the Exhibits and Schedules thereto that are delivered pursuant
thereto, constitutes the entire agreement and understanding of the parties in
respect of the subject matter of the Credit Agreement as amended by this
Amendment and supersedes all prior understandings, agreements or representations
by or among the parties, written or oral, to the extent they relate in any way
to the subject matter of the Credit Agreement as amended by this Amendment.


 


[SIGNATURE PAGE FOLLOWS]


 


24

















 


IN WITNESS WHEREOF, the parties have executed this Amendment, or
caused this Amendment to be executed by their authorized representatives, as of
the date stated in the introductory paragraph of this Amendment.


 


 


	
   

  	
  BORROWER AND HOLDINGS:

  
	
   

  	
   

  
	
   

  	
  MERISANT COMPANY

  
	
   

  	
  MERISANT WORLDWIDE, INC.,

  
	
   

  	
  f/k/a Tabletop Holdings, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Anthony J. Nocchiero

  	
   

  
	
   

  	
  Name:

  	
  Anthony J. Nocchiero

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President, CFO

  	
   

  
						



 


Signature
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Limited
Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  CREDIT SUISSE,

  
	
   

  	
  Cayman Islands Branch,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Carol Flaton

  	
   

  
	
   

  	
  Name:

  	
  Carol Flaton

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sharon M. Meadows

  	
   

  
	
   

  	
  Name:

  	
  Sharon M. Meadows

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
										



 


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Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Oligra 43

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Karen Thompson

  	
   

  
	
   

  	
  Name:

  	
  Karen Thompson

  	
   

  
	
   

  	
  Title:

  	
  Loans
  Officer

  	
   

  
						



 


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Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Emerald Orchard Limited

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Arlene Arellano

  	
   

  
	
   

  	
  Name:

  	
  Arlene Arellano

  	
   

  
	
   

  	
  Title:

  	
  Loan Officer

  	
   

  
					



 


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Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Highland Credit Ops CDO Ltd

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Doreen Britt

  	
   

  
	
   

  	
  Name:

  	
  Doreen
  Britt

  	
   

  
	
   

  	
  Title:

  	
  Attorney-in-fact

  	
   

  
					



 


Signature Page to


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Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Grand Central Asset Trust, HLD Series

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mikus N. Kins

  	
   

  
	
   

  	
  Name:

  	
  Mikus
  N. Kins

  	
   

  
	
   

  	
  Title:

  	
  Attorney-in-fact

  	
   

  
					



 


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  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Highland Floating Rate LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joe Dougherty

  	
   

  
	
   

  	
  Name:

  	
  Joe
  Dougherty

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  	
   

  
						



 


Signature Page to


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  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Highland Floating Rate Advantage Fund

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joe Dougherty

  	
   

  
	
   

  	
  Name:

  	
  Joe
  Dougherty

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  	
   

  
						



 


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  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Pioneer Floating Rate Trust

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joe Doughtery

  	
   

  
	
   

  	
  Name:

  	
  Joe
  Dougherty

  	
   

  
	
   

  	
  Title:

  	
  Portfolio
  Manager

  	
   

  
						



 


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Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  First Trust/Highland Capital Floating Rate
  Income Fund

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joe Doughtery

  	
   

  
	
   

  	
  Name:

  	
  Joe
  Dougherty

  	
   

  
	
   

  	
  Title:

  	
  Portfolio
  Manager

  	
   

  
						



 


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Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  First Trust/Highland Capital Floating Rate
  Income Fund II

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joe Doughtery

  	
   

  
	
   

  	
  Name:

  	
  Joe Dougherty

  	
   

  
	
   

  	
  Title:

  	
  Portfolio
  Manager

  	
   

  
							



 


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Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ELF Funding Trust I

  By: Highland Capital Management, L.P., As

  Collateral Manager

  
	
   

  	
  By:

  	
    Strand Advisors, Inc., Its
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Chad Schramek

  	
   

  
	
   

  	
  Name:

  	
    Chad Schramek

  	
   

  
	
   

  	
  Title:

  	
      Assistant Treasurer

  	
   

  
	
   

  	
   

  	
  Strand Advisors, Inc., General Partner of

  Highland Capital Management, L.P.

  	
   

  
										



 


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Limited
Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Loan Star State Trust

  By: Highland Capital Management, L.P., As

  Collateral Manager

  
	
   

  	
  By:

  	
    Strand Advisors, Inc., Its
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Chad Schramek

  	
   

  
	
   

  	
  Name:

  	
    Chad Schramek

  	
   

  
	
   

  	
  Title:

  	
      Assistant Treasurer

  	
   

  
	
   

  	
   

  	
  Strand Advisors, Inc., General Partner of

  Highland Capital Management, L.P.

  	
   

  
											



 


Signature Page to


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Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Southfork CLO, Ltd.

  By: Highland Capital Management, L.P., As

  Collateral Manager

  
	
   

  	
  By:

  	
    Strand Advisors, Inc., Its
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Chad Schramek

  	
   

  
	
   

  	
  Name:

  	
    Chad Schramek

  	
   

  
	
   

  	
  Title:

  	
      Assistant Treasurer

  	
   

  
	
   

  	
   

  	
  Strand Advisors, Inc., General Partner of

  Highland Capital Management, L.P.

  	
   

  
											



 


Signature
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Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Jasper CLO, Ltd

  By: Highland Capital Management, L.P., As

  Collateral Manager

  
	
   

  	
  By:

  	
    Strand Advisors, Inc., Its General
  Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Chad Schramek

  	
   

  
	
   

  	
  Name:

  	
    Chad Schramek

  	
   

  
	
   

  	
  Title:

  	
      Assistant Treasurer

  	
   

  
	
   

  	
   

  	
  Strand Advisors, Inc., General Partner of

  Highland Capital Management, L.P.

  	
   

  
										



 


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Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Gleneagles CLO, Ltd.

  By: Highland Capital Management, L.P., As

  Collateral Manager

  
	
   

  	
  By:

  	
    Strand Advisors, Inc., Its
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Chad Schramek

  	
   

  
	
   

  	
  Name:

  	
    Chad Schramek

  	
   

  
	
   

  	
  Title:

  	
      Assistant Treasurer

  	
   

  
	
   

  	
   

  	
  Strand Advisors, Inc., General Partner of

  Highland Capital Management, L.P.

  	
   

  
										



 


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Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Restoration Funding CLO, LTD.

  By: Highland Capital Management, L.P., As

  Collateral Manager

  
	
   

  	
  By:

  	
    Strand Advisors, Inc., Its
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Chad Schramek

  	
   

  
	
   

  	
  Name:

  	
    Chad Schramek

  	
   

  
	
   

  	
  Title:

  	
      Assistant Treasurer

  	
   

  
	
   

  	
   

  	
  Strand Advisors, Inc., General Partner of

  Highland Capital Management, L.P.

  	
   

  
										



 


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Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Rockwall CDO LTD.

  By: Highland Capital Management, L.P., As

  Collateral Manager

  
	
   

  	
  By:

  	
    Strand Advisors, Inc., Its
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Chad Schramek

  	
   

  
	
   

  	
  Name:

  	
    Chad Schramek

  	
   

  
	
   

  	
  Title:

  	
      Assistant Treasurer

  	
   

  
	
   

  	
   

  	
  Strand Advisors, Inc., General Partner of

  Highland Capital Management, L.P.

  	
   

  
										



 


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Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Liberty CLO, Ltd.

  By: Highland Capital Management, L.P., As

  Collateral Manager

  
	
   

  	
  By:

  	
    Strand Advisors, Inc., Its
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Chad Schramek

  	
   

  
	
   

  	
  Name:

  	
    Chad Schramek

  	
   

  
	
   

  	
  Title:

  	
      Assistant Treasurer

  	
   

  
	
   

  	
   

  	
  Strand Advisors, Inc., General Partner of

  Highland Capital Management, L.P.

  	
   

  
										



 


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Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Liberty Mutual Insurance Company

  By: Highland Capital Management, L.P., As

  Collateral Manager

  
	
   

  	
  By:

  	
    Strand Advisors, Inc., Its
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Chad Schramek

  	
   

  
	
   

  	
  Name:

  	
    Chad Schramek

  	
   

  
	
   

  	
  Title:

  	
      Assistant Treasurer

  	
   

  
	
   

  	
   

  	
  Strand Advisors, Inc., General Partner of

  Highland Capital Management, L.P.

  	
   

  
										



 


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  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Loan Funding IV LLC

  By: Highland Capital Management, L.P., As

  Collateral Manager

  
	
   

  	
  By:

  	
    Strand Advisors, Inc., Its
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Chad Schramek

  	
   

  
	
   

  	
  Name:

  	
    Chad Schramek

  	
   

  
	
   

  	
  Title:

  	
      Assistant Treasurer

  	
   

  
	
   

  	
   

  	
  Strand Advisors, Inc., General Partner of

  Highland Capital Management, L.P.

  	
   

  
										



 


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  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Loan Funding VII LLC

  By: Highland Capital Management, L.P., As

  Collateral Manager

  
	
   

  	
  By:

  	
    Strand Advisors, Inc., Its
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Chad Schramek

  	
   

  
	
   

  	
  Name:

  	
    Chad Schramek

  	
   

  
	
   

  	
  Title:

  	
      Assistant Treasurer

  	
   

  
	
   

  	
   

  	
  Strand Advisors, Inc., General Partner of

  Highland Capital Management, L.P.

  	
   

  
										



 


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  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Highland Loan Funding V Ltd.

  By: Highland Capital Management, L.P., As

  Collateral Manager

  
	
   

  	
  By:

  	
    Strand Advisors, Inc., Its
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Chad Schramek

  	
   

  
	
   

  	
  Name:

  	
    Chad Schramek

  	
   

  
	
   

  	
  Title:

  	
      Assistant Treasurer

  	
   

  
	
   

  	
   

  	
  Strand Advisors, Inc., General Partner of

  Highland Capital Management, L.P.

  	
   

  
										



 


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  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Barclays Bank PLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Gregory R. Perry

  	
   

  
	
   

  	
  Name:

  	
    Gregory R. Perry

  	
   

  
	
   

  	
  Title:

  	
      Attorney-in-fact

  	
   

  
								



 


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  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Copernicus Euro CDO-I B.V.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Appu Mundassery

  	
   

  
	
   

  	
  Name:

  	
    Appu Mundassery

  	
   

  
	
   

  	
  Title:

  	
    Director

  	
   

  
	
   

  	
   

  	
  Highland Capital Management Europe, Ltd.

  	
   

  
									



 


Signature
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Limited
Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Copernicus Euro CDO-II B.V.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Appu Mundassery

  	
   

  
	
   

  	
  Name:

  	
    Appu Mundassery

  	
   

  
	
   

  	
  Title:

  	
     Director

  	
   

  
	
   

  	
   

  	
  Highland Capital Management Europe, Ltd.

  	
   

  
									



 


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Waiver and Fourth Amendment to Credit Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
  CREDIT SUISSE, Cayman Islands
  Branch

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ian Landow

  	
   

  
	
   

  	
  Name:

  	
  Ian Landow

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael T. Wotanowski

  	
   

  
	
   

  	
  Name:

  	
  Michael T. Wotanowski

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
											



 


Signature
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Limited
Waiver and Fourth Amendment to Credit Agreement