EXHIBIT 10.18
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT"), dated as of
July 2, 2004, 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 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 First Boston, as sole arranger and book
manager, Wachovia Bank National Association, as syndication agent, and Bank One,
NA and Fortis Capital Corp., as co-documentation agent are parties to that
certain Credit Agreement, dated as of July 11, 2003 (as heretofore amended or
otherwise modified, the "CREDIT AGREEMENT").
B. The Borrower and Holdings have requested the deletion of the
requirements under the Credit Agreement for the Borrower and Holdings to furnish
certain legal opinions in connection with the SwissCo Intercompany Note.
C. The Borrower, Holdings, the Requisite Lenders and the
Administrative Agent 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
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
AMENDMENTS
2.1. AMENDMENT TO THE CREDIT AGREEMENT. Section 6.16 of the Credit
Agreement is hereby amended by amending and restating the last sentence thereof
in its entirety to read as follows: "Each of the Borrower and Holdings will not,
and will not permit any of its Subsidiaries to, directly or indirectly, fail to,
no later than the date 360 days after the Closing Date, record the SwissCo 2
Note Security Agreement Amendment, the SwissCo 2 Note Security Agreement or such
other documents or take such other actions as shall be necessary such that, at
all times from and after the date 360 days after the Closing Date, in the case
of any Lien on any Foreign Trademark granted by SwissCo 2 to the Borrower under
the SwissCo 2 Note Original Security Agreement that was perfected under the
Requirements of Law of any Foreign Trademarks Applicable Jurisdictions
applicable to such Foreign Trademark immediately prior to the Closing Date, the
Lien granted by SwissCo 2 to the Borrower under the SwissCo 2 Note Security
Agreement in such Foreign Trademark shall continue to be perfected under the
Requirements of Law of such jurisdiction." The Requisite Lenders further hereby
waive any Default or Event of Default caused solely and directly by the failure
of Holdings or the Borrowers to comply with subparagraph (ii) of the second
sentence of Section 6.16 of the Credit Agreement as in effect immediately prior
to the Amendment Effective Date.
2.2. EFFECTIVENESS. This Amendment shall become effective as of the
first date (the "AMENDMENT EFFECTIVE DATE") on which each of the following
conditions is satisfied:
(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 Administrative Agent, the Requisite Lenders, the Borrower and MWI; and
(b) the Administrative Agent shall have received all accrued and
unpaid costs and expenses (including legal fees and expenses) required to be
paid pursuant hereto or the Credit Agreement on or prior to the Amendment
Effective Date.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1. 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 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
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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 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;
(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) 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.
(e) The representations and warranties of the Borrower and Holdings in
clauses (b) through (c) of this Section 3.1 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.
3.2. SURVIVAL. The representations and warranties in Section 3.1 shall
survive the execution and delivery of this Amendment and the Amendment Effective
Date.
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ARTICLE 4
MISCELLANEOUS
4.1. 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. 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.
4.2. 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.
4.3. GOVERNING LAW. This Amendment will be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
choice of law principles.
4.4. 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.
4.5. 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.
4.6. 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.
4.7. 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.
4.8. COSTS; EXPENSES. 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
reasonable out-of-pocket costs and expenses of the
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Administrative Agent incurred in connection with the preparation, execution and
delivery of this Amendment, including the reasonable fees and expenses of legal
counsel to the Administrative Agent.
4.9. 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.
4.10. 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]
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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.
MERISANT COMPANY
MERISANT WORLDWIDE, INC.,
f/k/a Tabletop Holdings, Inc.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------
Title: Chief Executive Officer
------------------------------
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent and as a Lender
By: /s/ S. Xxxxxxx Xxx
---------------------------------
Name: S. Xxxxxxx Xxx
-------------------------------
Title: Director
------------------------------
By: /s/ Illegible
---------------------------------
Name: Illegible
-------------------------------
Title: Director
------------------------------
BANK ONE, N.A.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------
Title: Associate Director
------------------------------
OLYMPIC CLOI
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
-------------------------------
Title: Chief Operating Officer,
------------------------------
Centre Pacific LLC, Manager
------------------------------
SEMINOLE FUNDING LLC
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------
Title: Assistant Vice President
------------------------------
RIVIERA FUNDING LLC
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
-------------------------------
Title: Vice President
------------------------------
MAPLEWOOD (CAYMAN) LIMITED
By: Babson Capital Management LLC under
delegated authority from Massachusetts Mutual Life
Insurance Company as Investment Manager
By: /s/ XxxxXxx Xxxxxxx
---------------------------------
Name: XxxxXxx Xxxxxxx
-------------------------------
Title: Managing Director
------------------------------
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: Babson Capital Management LLC as
Investment Adviser
By: /s/ XxxxXxx Xxxxxxx
---------------------------------
Name: XxxxXxx Xxxxxxx
-------------------------------
Title: Managing Director
------------------------------
XXXXXX CDO LTD
By: Babson Capital Management LLC as
Investment Manager
By: /s/ XxxxXxx Xxxxxxx
---------------------------------
Name: XxxxXxx Xxxxxxx
-------------------------------
Title: Managing Director
------------------------------
FOREST CREEK CLO, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Xxx Xxxxxxx
---------------------------------
Name: Xxx Xxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
LONG GROVE CLO, Limited
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Xxx Xxxxxxx
---------------------------------
Name: Xxx Xxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
MUIRFIELD TRADING LLC
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
-------------------------------
Title: Vice President
------------------------------
ROSEMONT CLO, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Xxx Xxxxxxx
---------------------------------
Name: Xxx Xxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
SEQUILS-Cumberland I, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Xxx Xxxxxxx
---------------------------------
Name: Xxx Xxxxxxx
-------------------------------
Title: Senior Vice President
BIG SKY SENIOR LOAN FUND, LTD.
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
-------------------------------
Title: Vice President
------------------------------
COSTANTINUS XXXXX XXXXX CDO V, LTD.
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
-------------------------------
Title: Vice President
------------------------------
XXXXX XXXXX CDO III, LTD.
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
-------------------------------
Title: Vice President
------------------------------
XXXXX XXXXX CDO VI LTD.
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
-------------------------------
Title: Vice President
------------------------------
XXXXX XXXXX INSTITUTIONAL
SENIOR LOAN FUND
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
-------------------------------
Title: Vice President
------------------------------
XXXXX XXXXX
LIMITED DURATION INCOME FUND
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
-------------------------------
Title: Vice President
------------------------------
XXXXX XXXXX SENIOR
FLOATING RATE TRUST
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
-------------------------------
Title: Vice President
------------------------------
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
-------------------------------
Title: Vice President
------------------------------
XXXXX XXXXX VT FLOATING-RATE
INCOME FUND
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
-------------------------------
Title: Vice President
------------------------------
XXXXXXX & CO
By: Boston Management and Research as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
-------------------------------
Title: Vice President
------------------------------
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
-------------------------------
Title: Vice President
------------------------------
TOLLI & CO.
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
-------------------------------
Title: Vice President
------------------------------
FLAGSHIP CLO II
By: Flagship Capital Management, Inc.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
-------------------------------
Title: Director
------------------------------
FLAGSHIP CLO 2001 - 1
By: Flagship Capital Management, Inc.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
-------------------------------
Title: Director
------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
-------------------------------
Title: Duly Authorized Signatory
-----------------------------
GSC EUROPEAN CDO I S.A.
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
-------------------------------
Title: Director
------------------------------
HSH NORDBANK AG NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
-------------------------------
Title: General Manager
------------------------------
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
-------------------------------
Title: General Manager
------------------------------
BLUE SQUARE FUNDING LIMITED SERIES 3
By: /s/ Xxxxxxx X'Xxxxxx
---------------------------------
Name: Xxxxxxx X'Xxxxxx
-------------------------------
Title: Vice President
------------------------------
COLUMBIA FLOATING RATE ADVANTAGE
FUND
By: Highland Capital Management, L.P., its
Investment Advisor
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
-------------------------------
Title: Senior Portfolio Manager
------------------------------
Highland Capital Management, L.P.
------------------------------------
COLUMBIA FLOATING RATE LIMITED
LIABILITY COMPANY
By: Highland Capital Management, L.P., its
Investment Advisor
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
-------------------------------
Title: Senior Portfolio Manager
------------------------------
Highland Capital Management, L.P.
------------------------------------
ELF FUNDING TRUST I
By: Highland Capital Management, L.P., as
Collateral Manager
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
-------------------------------
Title: Senior Portfolio Manager
------------------------------
Highland Capital Management, L.P.
------------------------------------
EMERALD ORHARD LIMITED
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxx
-------------------------------
Title: Attorney in Fact
------------------------------
APEX (IDM) CDO I, LTD
ELC (CAYMAN) LTD. 1999-II
ELC (CAYMAN) LTD. 1999-III
ELC (CAYMAN) LTD. 2000-I
XXXXX CLO LTD. 2000-I
By: Babson Capital Management LLC as
Collateral Manager
By: /s/ XxxxXxx Xxxxxxx
---------------------------------
Name: XxxxXxx Xxxxxxx
-------------------------------
Title: Managing Director
------------------------------
SUFFIELD CLO, LIMITED
By: Babson Capital Management LLC as
Collateral Manager
By: /s/ XxxxXxx Xxxxxxx
---------------------------------
Name: XxxxXxx Xxxxxxx
-------------------------------
Title: Managing Director
------------------------------
AERIES FINANCE-II, LTD.
By: Patriarch Partners X, LLC, its
Managing Agent
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
-------------------------------
Title: Manager
------------------------------
AMARA-1 FINANCE LTD.
By: Patriarch Partners XI, LLC, its
Managing Agent
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
-------------------------------
Title: Manager
------------------------------
AMARA-2 FINANCE LTD.
By: Patriarch Partners XII, LLC, its
Managing Agent
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
-------------------------------
Title: Manager
------------------------------
OASIS COLLATERALIZED HIGH INCOME
PORTFOLIOS-1, LTD.
By: Patriarch Partners XIII, LLC, its
Managing Agent
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
-------------------------------
Title: Manager
------------------------------
PILGRIM CLO 1999-1 LTD.
By: ING Investments, LLC as its
Investment Manager
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
-------------------------------
Title: Vice President
------------------------------
SRF 2000, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
-------------------------------
Title: Vice President
------------------------------
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxx
-------------------------------
Title: Vice President
------------------------------
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
-------------------------------
Title: Executive Director
------------------------------
