EXHIBIT
10.22(f)


 


MODIFICATION
OF CREDIT AGREEMENT,


WAIVER AND
CONSENT


 


THIS
MODIFICATION OF CREDIT AGREEMENT AND CONSENT (“Modification and Consent”) is
made the 15th day of August, 2005 (the “Effective Date”), by
and between WACHOVIA BANK, NATIONAL ASSOCIATION,
a national banking association, (“Lender”), and CRUZAN
INTERNATIONAL, INC., a Delaware corporation formerly known as
Todhunter International, Inc., a Delaware corporation (“Borrower”)


 


W I T N E
S S E T H:


 


WHEREAS, on October 19,
2001, Lender, Borrower and other lenders entered into an Amended and Restated
Credit Agreement (as subsequently amended, “Credit Agreement”) in connection
with Revolving Loans, Term Loans and Letters of Credit made available by
Lender, and other lenders, to Borrower in an aggregate commitment that is
currently of $40,000,000.00; and


 


WHEREAS,
Lender, as successor by merger to SouthTrust Bank, is the Administrative Agent
and sole Lender under the Credit Agreement; and


 


WHEREAS,
V&S Vin & Sprit AB (“V&S”) intends to acquire majority of the
ownership interests in Borrower including those interests held by Angostura
Limited; and


 


WHEREAS, the
owners of Borrower intend to convert Borrower from a publicly traded
corporation to a privately held corporation;


 


WHEREAS, these
transactions require certain modifications of the Credit Agreement and/or
consent of Lender with respect to such actions; and


 


WHEREAS,
Lender is willing to amend the Credit Agreement and to consent to certain
actions on the terms and conditions set forth in this Modification.


 


NOW,
THEREFORE, in consideration of mutual promises and covenants of this
Modification and Consent and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Lender and Borrower
agree as follows:


 


1.                                       Recitals.  The foregoing recitals are true and correct
and by this reference are made a material part of this Modification and
Consent.  All capitalized terms used
herein shall have the meaning ascribed to them in the Credit Agreement unless
the context shall require otherwise.


 


2.                                       Lenders.  Wachovia Bank, National Association is the
sole Lender, having received by assignment and mutual agreement the Loan
interests of the other lenders heretofore a party to the Credit Agreement as
Lenders and having succeeded to SouthTrust Bank’s interests under the Credit
Agreement by merger.


 





















 


3.                                       Waiver:  Lender hereby agrees to waive Borrower’s
compliance with the provisions of Section 11.03 (Fixed Charge Coverage)
for the period ended June 30, 2005.


 


4.                                       Acquisition
of Controlling Interests.  Lender
hereby consents, in accordance with Article X of the Credit Agreement, to
the acquisition by V&S of the majority, and controlling interests, of
Angostura Limited in Borrower.


 


5.                                       Control.  The definition of “Control” in Article I
is hereby replaced in its entirety with the following:


 


“Control” means the ownership by any one Person or group of
related Persons of more than fifty percent (50%) of the outstanding shares of
voting stock of the Borrower or a Subsidiary.


 


6.                                       Conversion
to Private Company.  To the extent
consent or approval is required, Lender hereby consents to the Borrower’s
becoming a privately held corporation (including, without limitation,
consenting to the merger of the Borrower with a direct or indirect subsidiary
of V&S, the related changes in the organizational documents of the
Borrower, and the other transactions contemplated thereby) and acknowledges
that upon its successful conversion to a privately held corporation the
requirements of the Credit Agreement based on its being a publicly held
corporation shall be deemed waived for as long as the Borrower is privately
held.


 


7.                                       Financial
Statements.  The financial statements
required by Section 9.02 to be delivered at the end of each fiscal year of
the Borrower shall be audited by McGladrey & Pullen, LLP or such other
independent certified public accountants of recognized national standing
proposed by Borrower and otherwise reasonably acceptable to Lender.


 


8.                                       Warranty.  Borrower hereby warrants and represents to
Lender that, since December 1, 2004, after giving effect to this
Modification, Borrower has been and is in compliance with all provisions of the
Credit Agreement and all other Loan Documents and that no Default or Event of
Default has occurred thereunder nor has any event occurred or failed to occur
which with the passage of time or the giving of notice or both would comprise
such a Default or Event of Default.


 


9.                                       Ratifications.  Borrower hereby ratifies and confirms each of
its obligations and indebtedness under the Credit Agreement and each of the
other Loan Documents, as amended hereby, and hereby represents and warrants to
Lender that Borrower neither has nor claims any defenses, counterclaims or
offsets to any such obligations or indebtedness.


 


10.                                 Fees.  The effectiveness of this Modification and
the amendments and waivers contemplated herein are expressly conditioned upon
the payment by Borrower to Lender of an amendment fee of $102,500.00 and
reimbursement by Borrower of Lender for all reasonable attorneys’ fees and
expenses incurred in connection with this Modification.


 


11.                                 Miscellaneous.


 


(a)  This
agreement shall be governed by and construed in accordance with the laws of the
State of Florida.  Paragraph headings
used herein are for convenience only and shall 


 


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not be used to interpret any term hereof.  The Credit Agreement shall continue in full
force and effect as modified by this Modification.  In the event the terms of this Modification
conflict with the terms of the Credit Agreement, the terms of this Modification
shall control.


 


(b)  This
Modification constitutes the entire agreement among the parties hereto and
supersedes all prior agreements, understandings, negotiations and discussions,
both written and oral among the parties hereto with respect to the subject
matter hereof, all of which prior agreements, understanding, negotiations and
discussions, both written and oral, are merged into this Modification.  All provisions of the Credit Agreement and
each of the other Loan Documents shall remain in full force and effect as
modified by this Modification.  Without
limiting the generality of any of the provisions of this Modification, nothing herein
or in any instrument or agreement shall be deemed or construed to constitute a
novation, satisfaction or refinancing of all or any portion of the Loan or in
any manner affect or impair the lien or priority of the Credit Agreement or any
of the Loan Documents as amended hereby.


 


(c)  This
Modification may be executed in any number of counterparts with each executed
counterpart constituting an original, but altogether constituting but one and
the same instrument.


 


(d)  This
Modification shall be binding upon and inure to the benefit of Borrower and
Lender and their respective heirs, legal representatives, executors, successors
and assigns.


 


12.                                 RELEASE.  IN CONSIDERATION OF THE ACCOMMODATIONS
PROVIDED HEREIN, BORROWER HEREBY UNCONDITIONALLY IRREVOCABLY AND FOREVER
RELEASES, ACQUITS AND DISCHARGES LENDER AND LENDER’S OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS AND COUNSEL FROM ANY AND ALL CLAIMS, DEMANDS AND CAUSES OF
ACTION THAT ANY OF THEM HAD, NOW HAS OR MAY IN THE FUTURE HAVE AGAINST
LENDER OR ANY ONE OR MORE OF LENDER’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
COUNSEL FOR THE ACTS OR OMISSIONS OF ANY OF THE FOREGOING PARTIES FROM THE
BEGINNING OF TIME THROUGH, TO AND INCLUDING THE DATE OF THE EFFECTIVENESS OF
THIS MODIFICATION, WHICH RELATED TO ANY CLAIMS ARISING OUT OF OR CONNECTED IN
ANY MANNER WITH THE TRANSACTIONS CONTEMPLATED HEREIN OR IN THE CREDIT AGREEMENT
AS AMENDED HEREBY OR ANY OTHER LOAN DOCUMENTS AS THE SAME MAY BE AMENDED
HEREBY, AS THE CASE MAY BE.


 


13.                                 WAIVER
OF JURY TRIAL.  BORROWER AND LENDER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS MODIFICATION OR ANY AGREEMENT EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS,
(WHETHER VERBAL OR WRITTEN) OR ACTIONS BY ANY PARTY.  THIS PROVISION IS A MATERIAL INDUCEMENT TO
LENDERS’ ENTERING INTO THIS MODIFICATION AND MAKING ANY LOAN, ADVANCE OR OTHER
EXTENSION OF CREDIT TO BORROWER. 
FURTHER, BORROWER HEREBY CERTIFIES THAT NO 


 


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REPRESENTATIVE OR AGENT OF LENDER NOR LENDER’S COUNSEL, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT OR ANY OF AGENT’S COUNSEL OR
LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER
OF RIGHT TO JURY TRIAL PROVISION.  NO
REPRESENTATIVE OR AGENT OF LENDER OR LENDER’S COUNSEL HAS THE AUTHORITY TO
WAIVE, CONDITION, OR MODIFY THIS PROVISION.


 


IN WITNESS
WHEREOF, Borrower and Lender have caused this agreement to be effective as of
the day and year set forth above.


 


	
  WITNESSES:

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  CRUZAN
  INTERNATIONAL, INC., a Delaware 

  
	
   

  	
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/:

  	
  Michelle
  Gerber

  	
   

  	
  By:

  	
  /s/ Ezra
  Shashoua

  	
   

  
	
  Print Name:
  Michelle Gerber

  	
  Print Name: 

  	
  Ezra
  Shashoua

  	
   

  
	
  /s/:

  	
  Stephanie
  Fisher

  	
   

  	
  Title: 

  	
  Executive
  Vice President & CFO

  	
   

  
	
  Print Name: Stephanie
  Fisher

  	
   

  
											



 


 


	
  STATE OF
  FLORIDA

  	
  )

  
	
   

  	
  )

  
	
  COUNTY OF PALM
  BEACH

  	
  )

  



 


The foregoing
instrument was acknowledged before me this 15th day of August, 2005 by Ezra
Shashoua as Executive Vice President & CFO of Cruzan International, Inc.,
on behalf of the corporation.  He is personally
known to me or has produced                                          
(type of identification) as identification.


 


 


	
   

  	
  /s/:

  	
  Jennifer
  Lubrano-Murphy

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  	
  State of
  Florida

  
	
   

  	
   

  
	
   

  	
  Jennifer
  Lubrano-Murphy

  	
   

  
	
   

  	
  (Print, Type or Stamp
  Commissioned Name of Notary Public)

  
					



 


 


[Signatures continued on next
page]


 


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  LENDER:

  
	
   

  	
   

  
	
  WITNESSES:

  	
  WACHOVIA
  BANK, NATIONAL

  
	
   

  	
  ASSOCIATION

  



 


 


	
  /s/:

  	
  Michelle
  Gerber

  	
   

  	
  By:

  	
  /s/ Michael
  Betty

  	
   

  
	
  Print Name:
  Michelle Gerber

  	
  Print Name:
  Michael Betty

  
	
  /s/:

  	
  Maryann
  Nobile

  	
   

  	
  Title: Vice
  President

  
	
  Print Name: Maryann Nobile

  	
   

  



 


 


	
  STATE OF
  FLORIDA

  	
  )

  
	
   

  	
  )

  
	
  COUNTY OF

  	
  )

  



 


The foregoing
instrument was acknowledged before me this 15th day of August, 2005 by Michael
Betty as Vice President of Wachovia Bank, National Association, on behalf
of the bank.  He is personally known to
me or has produced                                                 
(type of identification) as identification.


 


 


	
   

  	
  /s/:

  	
  Laura S.
  Forbes

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  	
  State of
  Florida

  
	
   

  	
   

  
	
   

  	
  Laura S.
  Forbes

  	
   

  
	
   

  	
  (Print, Type or Stamp
  Commissioned Name of Notary Public)

  
					



 


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