**Exhibit 10.22**

 

**WAIVER OF DEFAULTS UNDER CREDIT AGREEMENT**

 

THIS AGREEMENTis made as of the 1st day of January, 2003, by and between **SOUTHTRUST BANK,**an Alabama corporation,formerly known as **SOUTHTRUST BANK, NATIONAL ASSOCIATION**acting as a Lender and as Administrative Agent and Funding Agent (collectively“Agent”) pursuant to the Credit Agreement, **WACHOVIABANK, N.A.**, a nationalbanking association, formerly know as **FIRSTUNION NATIONAL BANK**, a national banking association acting as aLender,**NATIONAL CITY BANK, NATIONALASSOCIATION**, a national banking association acting as aLender, and **SUNTRUST BANK**, aGeorgia corporation, formerly known as **SUNTRUSTBANK, SOUTH FLORIDA, N.A.**, a national banking association acting asa Lender (collectively the “Lenders”), and **TODHUNTERINTERNATIONAL, INC.,** a Delaware corporation (the “Borrower”).

 

**WITNESSETH:**

 

WHEREAS,Lenders, Agent and Borrower entered into a Credit Agreement dated as ofNovember 17, 1999 (the “Original Credit Agreement”) in connection with whichLenders made available to Borrower a revolving line of credit in the maximumprincipal amount of FIFTEEN MILLION and no/100s Dollars ($15,000,000.00) (the“Revolving Line of Credit”) evidenced by certain Revolving Credit Notes (the“Revolving Notes”) and Term Loans in the maximum principal amount of FIFTY SIXMILLION and no/100 Dollars ($56,000,000.00) evidenced by certain Term Notes(collectively with the Revolving Notes the “Notes”), secured and evidenced bythe Loan Documents, as defined in the Credit Agreement; and

 

WHEREAS, on orabout September 29, 2000, Agent, Lenders and Borrower entered into a Waiver andModification of Credit Agreement and on March 30, 2001, Agent, Lenders andBorrower entered into a Second Waiver and Modification of Credit Agreement; and

 

WHEREAS, onOctober 19, 2001, Agent, Lenders and Borrower entered into an Amended andRestated Credit Agreement amending and restating the Original Credit Agreement(the “Credit Agreement”)

 

WHEREAS,Lenders, Agent and Borrower have agreed to waive certain defaults by Borrowerunder the Credit Agreement.

 

NOW,THEREFORE, in consideration of the mutual promises and covenants of thisagreement and for other good and valuable consideration, the receipt andsufficiency of which is hereby acknowledged, Lenders, Agent and Borrower agreeas follows:

 

1.             RECITALS/TERMS.  All of the recitals set forth above are trueand correct and by this reference are made a material part of thisAgreement.  All capitalized terms usedherein which are defined in the Credit Agreement shall have the meaningprovided therein when used herein unless the context shall require otherwise.

 

2.             REAFFIRMATION OF NOTE.  Borrower hereby acknowledges that the Notescontinue to evidence the Revolving Loans and the Term Loans.

 

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3.             WAIVER.  Subject to the terms of this Agreement, theLenders hereby agree to waive the Default or Event of Default that occurred asof December 31, 2002, as a result of the non-compliance by the Borrower as ofDecember 31, 2002 with the provisions of Section 11.05 (Funded Debt to EBITDARatio) of the Credit Agreement.

 

4.             RATE CHANGE.  Each Applicable Margin shall be increased byfifty (50) basis points.  This ratechange shall be effective January 1, 2003.

 

5.             CREDIT LIMIT.  Beginning January 1, 2003, the availabilityof draws under the Revolving Credit Facility shall be limited to the lesser of(i) the availability under the Borrowing Base, or (ii) Nineteen Million FiveHundred Thousand and no/100 Dollars ($19,500,000.00).  That restriction shall remain in place until the earlier of (i)Borrower’s compliance with the Funded Debt to EBITDA Ratio, or (ii)modification of the Credit Agreement pursuant to the terms thereof.

 

6.             LIMITATION OF WAIVER.  The foregoing waiver is expressly limited tothe matters stated herein and shall apply solely to the specific provisions ofthe Credit Agreement set forth above and, in the case of Section 11.05 of theCredit Agreement, solely for the date set forth above.  The foregoing waiver shall not be deemed orconstrued as a waiver of or consent to (i) the non-compliance by the Borrowerwith any other covenant, term or condition of the Credit Agreement or any ofthe Loan Documents, or (ii) any further non-compliance by the Borrowersubsequent to December 31, 2002 with the provisions of Section 11.05 ofthe Amended and Restated Credit Agreement dated October 19, 2001.

 

7.             WARRANTS.  Borrower hereby warrants and represents toLenders that, since the date of the Credit Agreement other than violations ofthe financial covenant contained in Section 11.05 of the Credit Agreement,Borrower has been and is in compliance with all provisions of the CreditAgreement and all other Loan Documents and that no Default or Event of Defaulthas occurred thereunder nor has any event occurred or failed to occur whichwith the passage of time or the giving of notice or both would comprise such aDefault or Event of Default.

 

8.             RATIFICATION.  Borrower hereby ratifies and confirms eachof its obligations and indebtedness under the Credit Agreement and each of theother Loan Documents, as amended hereby, and hereby represents and warrants tothe Lenders and the Agent that Borrower neither has nor claims any defenses,counterclaims or offsets to any such obligations or indebtedness.

 

9.             FEES.  The effectiveness of this Modification andthe amendments contemplated herein are expressly conditioned upon the paymentby the Borrower to the Agent for the prorata benefit of the Lenders anamendment fee equal to twenty-five (25) basis points of the committed amountand reimbursement by the Borrower of the Agent and each of the Lenders for allreasonable attorneys’ fees and expenses incurred by each of them in connectionwith this Modification.

 

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10.           MISCELLANEOUS.

 

a.             This agreementshall be governed by and construed in accordance with the law of the State ofFlorida.  Paragraph headings used hereinare for convenience only and shall not be used to interpret any term hereof.  The Credit Agreement shall continue in fullforce and effect as modified by this Modification.  In the event the terms of this Modification conflict with theterms of the Credit Agreement, the terms of this Modification shall control.

 

b.             This Modificationconstitutes the entire agreement among the parties hereto and supersedes allprior agreements, understandings, negotiations and discussions, both writtenand 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 andeach of the other Loan Documents shall remain in full force and effect asmodified by this Agreement.  Withoutlimiting the generality of any of the provisions of this Modification, nothingherein or in any instrument or agreement shall be deemed or construed toconstitute a novation, satisfaction or refinancing of all or any portion of theLoan or in any manner affect or impair the lien or priority of the CreditAgreement or any of the Loan Documents as amended hereby.

 

c.             This Modificationmay be executed in any number of counterparts with each executed counterpartconstituting an original, but altogether constituting but one and the sameinstrument.

 

d.             This Modificationshall be binding upon and inure to the benefit of the Borrower, the Agent andthe Lenders and their respective heirs, legal representatives, executors,successors and assigns from January 1, 2003 forward.

 

11.           RELEASE.  IN CONSIDERATION OF THE ACCOMMODATIONSPROVIDED HEREIN, THE BORROWER HEREBY UNCONDITIONALLY, IRREVOCABLY AND FOREVERRELEASES, ACQUITS AND DISCHARGES THE LENDERS AND EACH OF THE LENDERS’RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND COUNSEL FROM ANY AND ALLCLAIMS, DEMANDS AND CAUSES OF ACTION THAT ANY OF THEM HAD, NOW HAS OR MAY INTHE FUTURE HAVE AGAINST ANY ONE OR MORE OF THE LENDERS OR ANY ONE OR MORE OFTHE LENDERS’ OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR COUNSEL FOR THE ACTS OROMISSIONS OF ANY OF THE FOREGOING PARTIES FROM THE BEGINNING OF TIME THROUGH,TO AND INCLUDING THE DATE OF THE EFFECTIVENESS OF THIS MODIFICATION, WHICHRELATED TO ANY CLAIMS ARISING OUT OF OR CONNECTED IN ANY MANNER WITH THETRANSACTIONS CONTEMPLATED HEREIN OR IN THE CREDIT AGREEMENT, AS AMENDED HEREBYOR ANY OTHER LOAN DOCUMENTS, AS THE SAME MAY BE AMENDED HEREBY, AS THE CASE MAYBE.

 

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12.           WAIVER OF JURY TRIAL.  THE BORROWER, THE AGENT AND THE LENDERSHEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAYHAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISINGOUT OF, UNDER OR IN CONNECTION WITH THIS MODIFICATION OR ANY AGREEMENT EXECUTEDIN 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 TOTHE LENDERS ENTERING INTO THIS MODIFICATION AND MAKING ANY LOAN, ADVANCE OROTHER EXTENSION OF CREDIT TO THE BORROWER. FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENTOF THE LENDERS, NOR THE AGENT OR ANY OF THE AGENT’S COUNSEL OR THE LENDERS’COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR ANY OF THEAGENT’S COUNSEL OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEKTO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.  NO REPRESENTATIVE OR AGENT OF THE LENDERS,NOR THE AGENT OR ANY OF THE AGENT’S COUNSEL OR THE LENDERS’ COUNSEL HAS THEAUTHORITY TO WAIVE, CONDITION, OR MODIFY THIS PROVISION.

 

IN WITNESSWHEREOF, the Borrower, the Agent and Lenders have caused this agreement to beeffective as of the day and year set forth above.

 
|                 |             | BORROWER:                                                           |
|----------------------|------------------|---------------------------------------------------------------------|
| Witnesses:           |             | TODHUNTER INTERNATIONAL,  INC.,   a  Delaware corporation |
|                 |             |                                                                |   |
| /s/ Thomas A. Valdes |             | By:                                                                 |  /s/ Jay S. Maltby |   |   |
| Print Name:          | Thomas A. Valdes |                                                                | Print Name: | Jay S. Maltby |   |   |
|                 |             | Title:                                                              | Chairman and CEO |   |   |
| /s/ William Viggiano |             |                                                                |   |
| Print Name:          | William Viggiano |                                                                |   |   |
|                      |                  |                                                                     |  |  |  |  |  |  |  |  |

 

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STATE OF

 

COUNTY OF

 

The foregoing instrument wasacknowledged before me this 18th day of February, 2003 by Jay S. Maltby, asChairman and CEO of Todhunter International, Inc., a Delaware corporation, onbehalf of the corporation.  He/she ispersonally known to me or has produced                                     (type of identification) as identification.

 

 
|   | /s/ Jennifer  Lubrano-Murphy                               |   |
|--------|------------------------------------------------------------|--------|
|   | NOTARY PUBLIC, STATE OF                                    |
|   |                                                       |
|   |                                                       |
|   | Jennifer Lubrano-Murphy                                    |   |
|   | (Print, Type or Stamp  Commissioned Name of Notary Public) |
|        |                                                            |        |  |

 

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|                 |             | **THE  AGENT:**                                                                      |
|----------------------|------------------|--------------------------------------------------------------------------------------|
|                 |             |                                                                                 |
|                 |             | **SOUTHTRUST  BANK,**formerly known as**SOUTHTRUST BANK**, **NATIONAL  ASSOCIATION** |
| Witnesses:           |             |                                                                                 |
|                 |             |                                                                                 |
|                 |             |                                                                                 |
| /s/ Florence Lindley |             | By:                                                                                  |  /s/ Mark Dierks |   |
| Print Name:          | Florence Lindley |                                                                                 | Print Name: |  Mark Dierks |   |
|                 |             | Title:                                                                               |  Commercial Account Manager |   |
| /s/ Francine Chong   |             |                                                                                 |
| Print Name:          | Francine Chong   |                                                                                 |   |
|                 |             |                                                                                 |
| STATE OF FLORIDA     |             |                                                                                 |
|                 |             |                                                                                 |
|                 |             |                                                                                 |
| COUNTY OF BROWARD    |             |                                                                                 |
|                      |                  |                                                                                      |  |  |  |  |  |  |  |

 

The foregoing instrument wasacknowledged before me this 18th day of February, 2003 by Mark Dierks, as CommercialAccount Manager of SouthTrust Bank, on behalf of the bank.  He/she is personally known to me or hasproduced                                      (type of identification) as identification.

 

 
|   | /s/ Lori Correa                                            |   |
|--------|------------------------------------------------------------|--------|
|   | NOTARY PUBLIC, STATE OF                                    |
|   |                                                       |
|   |                                                       |
|   | Lori Correa                                                |   |
|   | (Print, Type or Stamp  Commissioned Name of Notary Public) |
|        |                                                            |        |  |

 

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|                 |                   | **THE  LENDERS:**                                                                    |
|----------------------|------------------------|--------------------------------------------------------------------------------------|
|                 |                   |                                                                                 |
|                 |                   | **SOUTHTRUST  BANK,**formerly known as**SOUTHTRUST BANK**, **NATIONAL  ASSOCIATION** |
| Witnesses:           |                   |                                                                                 |
|                 |                   |                                                                                 |
|                 |                   |                                                                                 |
| /s/ Florence Lindley |                   | By:                                                                                  |  /s/ Mark Dierks |   |
| Print Name:          |  Florence Lindley |                                                                                 | Print Name: |  Mark Dierks |   |
|                 |                   | Title:                                                                               |  Commercial Account Manager |   |
| /s/ Francine Chong   |                   |                                                                                 |
| Print Name:          |  Francine Chong   |                                                                                 |   |
|                 |                   |                                                                                 |
| STATE OF FLORIDA     |                   |                                                                                 |
|                 |                   |                                                                                 |
| COUNTY OF BROWARD    |                   |                                                                                 |
|                      |                        |                                                                                      |  |  |  |  |  |  |  |

 

The foregoing instrument wasacknowledged before me this 18th day of February, 2003 by Mark Dierks, asCommercial Account Manager of SouthTrust Bank, on behalf of the bank.  He/she is personally known to me or hasproduced                                   (type of identification) as identification.

 

 
|   | /s/ Lori Correa                                            |   |
|--------|------------------------------------------------------------|--------|
|   | NOTARY PUBLIC, STATE OF                                    |
|   |                                                       |
|   | Lori Correa                                                |   |
|   | (Print, Type or Stamp  Commissioned Name of Notary Public) |
|        |                                                            |        |  |

 

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|                       |                   | **WACHOVIA  BANK, N.A.**, formerly known as**FIRST UNION NATIONAL BANK** |
|----------------------------|------------------------|--------------------------------------------------------------------------|
|                       |                   |                                                                     |
| Witnesses:                 |                   |                                                                     |
|                       |                   |                                                                     |
|                       |                   |                                                                     |
| /s/ Michelle Gerber        |                   | By:                                                                      |  /s/ David F. Abee |   |
| Print Name:                |  Michelle Gerber  |                                                                     | Print Name: |  David F. Abee |   |
|                       |                   | Title:                                                                   |  Vice President |   |
|  /s/ Liza Grant Smith |                   |                                                                     |
| Print Name:                |  Liza Grant Smith |                                                                     |   |
|                       |                   |                                                                     |
| STATE OF                   |                   |                                                                     |
|                       |                   |                                                                     |
| COUNTY OF                  |                   |                                                                     |
|                            |                        |                                                                          |  |  |  |  |  |  |  |

 

The foregoing instrument wasacknowledged before me this 18th day of February, 2003 by David Abee, as                               of Wachovia Bank, N.A., on behalf of the bank. He/she is personally known to me or has produced                                          (type of identification) as identification.

 

 
|   | /s/ Frances Bertotti                                       |   |
|--------|------------------------------------------------------------|--------|
|   | NOTARY PUBLIC, STATE OF                                    |
|   |                                                       |
|   | Frances Bertotti                                           |   |
|   | (Print, Type or Stamp  Commissioned Name of Notary Public) |
|        |                                                            |        |  |

 

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|                 |                   | **SUNTRUST  BANK,**formerly known as **SUNTRUST  BANK, SOUTH FLORIDA, N.A.** |
|----------------------|------------------------|------------------------------------------------------------------------------|
| Witnesses:           |                   |                                                                         |
|                 |                   |                                                                         |
|                 |                   |                                                                         |
| /s/ Russell Edghill  |                   | By:                                                                          | /s/ Barbara Baltar |   |
| Print Name:          |  Russell Edghill  |                                                                         | Print Name: |  Barbara Baltar |   |
|                 |                   | Title:                                                                       |  Vice President |   |
| /s/ Sandra N. Tozzie |                   |                                                                         |
| Print Name:          |  Sandra N. Tozzie |                                                                         |   |
|                 |                   |                                                                         |
| STATE OF FLORIDA     |                   |                                                                         |
|                 |                   |                                                                         |
| COUNTY OF BROWARD    |                   |                                                                         |
|                      |                        |                                                                              |  |  |  |  |  |  |  |

 

The foregoing instrument wasacknowledged before me this 19th day of February, 2003 by Barbara Baltar, asVice President of SunTrust Bank, on behalf of the bank.  He/she is personally known to me or hasproduced                                        (type of identification) as identification.

 

 
|   | /s/ Diane L. Libotte                                       |   |
|--------|------------------------------------------------------------|--------|
|   | NOTARY PUBLIC, STATE OF                                    |
|   |                                                       |
|   | Diane L. Libotte                                           |   |
|   | (Print, Type or Stamp  Commissioned Name of Notary Public) |
|        |                                                            |        |  |

 

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|                   |                     | **NATIONAL  CITY BANK , NATIONAL  ASSOCIATION** |
|------------------------|--------------------------|-------------------------------------------------|
| Witnesses:             |                     |                                            |
|                   |                     |                                            |
|                   |                     |                                            |
| /s/ R. Stephen Bassett |                     | By:                                             | /s/ Daniel R. Raynor |   |
| Print Name:            |  R. Stephen Bassett |                                            | Print Name: | Daniel R. Raynor |   |
|                   |                     | Title:                                          | Assistant Vice President |   |
| /s/ Gavin D. Young     |                     |                                            |
| Print Name:            |  Gavin D. Young     |                                            |   |
|                   |                     |                                            |
| STATE OF OHIO          |                     |                                            |
|                   |                     |                                            |
| COUNTY OF CUYAHOGA     |                     |                                            |
|                        |                          |                                                 |  |  |  |  |  |  |

 

The foregoing instrument wasacknowledged before me this 18th day of February, 2003 by Daniel R. Raynor, asAssistant Vice President of National City Bank of Kentucky, NationalAssociation, on behalf of the bank.  Heis personally known to me.

 

 
|   |                                                       | /s/ Ellen M. Brown |   |
|--------|------------------------------------------------------------|--------------------|--------|
|   | NOTARY PUBLIC, STATE OF                                    |
|   |                                                       |
|   | Ellen M. Brown                                             |               |
|   | (Print, Type or Stamp  Commissioned Name of Notary Public) |
|        |                                                            |                    |        |  |

 

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