**Exhibit 10.22(c)**

 

**LENDERS’CONSENT AND**

**MODIFICATIONOF CREDIT AGREEMENT**

 

THIS LENDERS’ CONSENT AND MODIFICATION OF CREDIT AGREEMENT(“Modification”) is made as of the 31st day of March, 2004, by and between **SOUTHTRUSTBANK**, an Alabama banking corporation, formerly known as SouthTrustBank, National Association acting as a Lender and as Administrative Agent andFunding Agent (collectively “Agent”) pursuant to the Credit Agreement (definedbelow), **WACHOVIABANK, NATIONAL ASSOCIATION**, a national banking association, formerlyknown as First Union National Bank, a national banking association, acting as alender, **NATIONALCITY BANK, NATIONAL ASSOCIATION,** a national banking association,acting as a lender, and **SUNTRUST BANK**, a Georgia corporation,formerly known as SunTrust Bank, South Florida, N.A., a national bankingassociation acting as a lender (collectively the “Lenders”), and **TODHUNTERINTERNATIONAL, INC.**, a Delaware corporation (the “Borrower”), joinedby **TODHUNTERFINANCE COMPANY**, a Delaware corporation.

 

**WI T N E S S E T H:**

 

WHEREAS,  Agent, Lenders andBorrower are parties to an Amended and Restated Credit Agreement datedOctober 19, 2001 as amended by Modification of Credit Agreement datedMay 14, 2003 (the “Credit Agreement”) and that certain Waiver of Defaultsunder Credit Agreement dated as of January 1, 2003 (“Waiver”) inconnection with Revolving Loans, Term Loans and Letters of Credit madeavailable by Lenders to Borrower thereunder; and

 

WHEREAS, Borrower desires to improve its financial position through aseries of transactions that entail, among other things, the creation of twosubsidiary corporations – one a Foreign Subsidiary (Todhunter (Barbados) SRL, aBarbados company) and one a Domestic Subsidiary (Todhunter Finance Company, aDelaware corporation) – and acceptance of an $18,000,000.00 loan from TodhunterFinance Company, all as more particularly described in letter datedMarch 9, 2004 from McGladrey & Pullen, LLP, to Ezra Shashoua,Chief Financial Officer for Borrower (the “Borrower’s Transactions”); and

 

WHEREAS, certain aspects of the Borrower’s Transactions require theconsent of Required Lenders under the Credit Agreement and other aspects of theBorrower’s Transactions conflict with certain Borrower’s covenants in theCredit Agreement; and

 

WHEREAS, the undersigned Lenders hold a sufficient percentage of thetotal Commitments to comprise the Required Lenders.

 

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

 

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

 

2.             RevolvingCommitment Amount.  The partiesacknowledge that Borrower has given Agent effective notice to reducepermanently the amount of the Revolving Commitment to $15,000,000.00 inaccordance with Section 2.12 of the Credit Agreement and that theRevolving Commitment is thus permanently reduced as of April 2, 2004.

 

3.             Creationof Subsidiaries.  NotwithstandingBorrower’s covenants in Section 10.09 of the Credit Agreement, Lendersconsent to Borrower’s creation of Todhunter (Barbados) SRL as a ForeignSubsidiary and Todhunter Finance Company as a Domestic Subsidiary for purposesof performing the Borrower’s Transactions.

 

4.             Indebtednessto Domestic Subsidiary. Notwithstanding Borrower’s covenants in Section 10.01 of the CreditAgreement, Lenders hereby consent to Borrower’s incurring indebtedness in favorof Todhunter Finance Company on the terms of the Promissory Note attachedhereto as Exhibit ”A”, for as long as Todhunter Finance Company remains aSubsidiary and provided that Todhunter Finance Company subordinates any and allclaims against Borrower with respect to such indebtedness to the Obligations,subject only to regularly scheduled payments of principal and interest undersaid Promissory Note as long as there exists no default with respect to theObligations.  Todhunter Finance Companyjoins in this Agreement for the sole purpose of unconditionally subordinatingany and all claims against Borrower with respect to such indebtedness to theObligations, subject to the aforementioned right to receive regularly scheduledpayments as long as Borrower is not in default with respect to the Obligations.  Lenders’ consent to Borrower’s incurringsuch indebtedness is hereby given notwithstanding any covenants of Borrower tothe contrary in Section 10.08 or Section 10.10.

 

5.             Pledgeof Foreign Subsidiary Stock.  Theforegoing Lenders’ consent to the Borrower’s Transactions is further conditionedupon Borrower and/or the appropriate Subsidiary pledging the requiredpercentage of the Voting Securities of Todhunter (Barbados) SRL to the Agentfor the benefit of the Agent and Lenders pursuant to Section 5.01 of theCredit Agreement.  Borrower and/or theappropriate Subsidiaries shall evidence such pledge by an amendment to thePledge Agreement dated October 19, 2001 (the “Pledge Agreement”) and suchpledge shall be perfected by delivery to the Agent of the requisite StockCertificates, as defined and described in the Pledge Agreement, together withblank stock powers. Such original Stock Certificates shall be delivered toLender within sixty (60) days from the execution hereof. Borrower warrants andrepresents to Lender, recognizing that Lender is relying on such in enteringinto this Modification, that there are no shareholder agreements or otheragreements granting any rights of approval, consent, management or control tothe holder of any non-Voting Securities of Todhunter (Barbados) SRL.

 

6.             Modificationof Credit Agreement.  To the extentnecessary to allow the Borrower’s Transactions specifically described in thisAgreement, the Credit Agreement shall be deemed amended, provided, however,that such approvals and amendment shall apply only to the Borrower’sTransactions and that any similar transactions in the future shall requireadditional approval of Required Lenders.

 

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7.             Warranty.  Borrower hereby warrants and represents toLenders that, since the date of the Modification of Credit Agreement, Borrowerhas been and is in compliance with all provisions of the Credit Agreement andall other Loan Documents and that no default or Event of Default has occurredthereunder nor has any event occurred or failed to occur which with the passageof time or the giving of notice or both would comprise such a Default or Eventof Default.

 

8.             Ratifications.  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 toLenders and Agent that Borrower neither has nor claims any defenses,counterclaims or offsets to any such obligations or indebtedness.

 

9.             Fees.  The effectiveness of this Agreement and theamendments contemplated herein are expressly conditioned upon the payment byBorrower to Agent for the prorata benefit of Lenders a fee of $25,000.00 andreimbursement by Borrower of all reasonable attorneys’ fees and expenses ofLender and Agent incurred in connection with this Agreement.

 

10.           Miscellaneous.

 

(a)  This Agreement shall begoverned by and construed in accordance with the laws of the State ofFlorida.  Paragraph headings used hereinare for convenience only and shall not be used to interpret any termhereof.  The Credit Agreement shallcontinue in full force and effect as modified by this Agreement.  In the event the terms of this Agreementconflict with the terms of the  CreditAgreement, the terms of this Agreement shall control.

 

(b)  This Agreement constitutesthe entire agreement among the parties hereto and supersedes all prioragreements, understandings, negotiations and discussions, both written and oralamong the parties hereto with respect to the subject matter hereof, all ofwhich prior agreements, understanding, negotiations and discussions, bothwritten and oral, are merged into this Agreement.  All provisions of the Credit Agreement and each of the other LoanDocuments shall remain in full force and effect as modified by thisAgreement.  Without limiting thegenerality of any of the provisions of this Agreement, nothing herein or in anyinstrument 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 manneraffect or impair the lien or priority of the Credit Agreement or any of theLoan Documents as amended hereby.

 

(c)  This Agreement may beexecuted in any number of counterparts with each executed counterpartconstituting an original, but altogether constituting but one and the sameinstrument.

 

(d)  This Agreement shall bebinding upon and inure to the benefit of Borrower, Agent and Lenders and theirrespective heirs, legal representatives, executors, successors and assigns.

 

11.           RELEASE.  IN CONSIDERATION OF THE ACCOMMODATIONSPROVIDED HEREIN, BORROWER HEREBY UNCONDITIONALLY IRREVOCABLY AND FOREVERRELEASES, ACQUITS AND DISCHARGES LENDERS AND EACH OF LENDERS’ RESPECTIVEOFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND

 

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COUNSEL FROM ANY AND ALL CLAIMS, DEMANDS AND CAUSES OF ACTION THAT ANYOF THEM HAD, NOW HAS OR MAY IN THE FUTURE HAVE AGAINST ANY ONE OR MORE OF THELENDERS OR ANY ONE OR MORE OF LENDERS’ OFFICERS, DIRECTORS, EMPLOYEES, AGENTSOR COUNSEL FOR THE ACTS OR OMISSIONS OF ANY OF THE FOREGOING PARTIES FROM THEBEGINNING OF TIME THROUGH, TO AND INCLUDING THE DATE OF THE EFFECTIVENESS OFTHIS AGREEMENT, WHICH RELATED TO ANY CLAIMS ARISING OUT OF OR CONNECTED IN ANYMANNER WITH THE TRANSACTIONS CONTEMPLATED HEREIN OR IN THE CREDIT AGREEMENT ASAMENDED HEREBY OR ANY OTHER LOAN DOCUMENTS AS THE SAME MAY BE AMENDED HEREBY,AS THE CASE MAY BE.

 

12.           WAIVEROF JURY TRIAL.  BORROWER, AGENT ANDLENDERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OFTHEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ORARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY AGREEMENTEXECUTED 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 TOLENDERS’ ENTERING INTO THIS AGREEMENT AND MAKING ANY LOAN, ADVANCE OR OTHEREXTENSION OF CREDIT TO BORROWER.  FURTHER,BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF LENDERS, NOR THEAGENT OR ANY OF AGENT’S COUNSEL OR LENDERS’ COUNSEL, HAS REPRESENTED, EXPRESSLYOR OTHERWISE, THAT AGENT OR ANY OF AGENT’S COUNSEL OR LENDERS WOULD NOT, IN THEEVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIALPROVISION.  NO REPRESENTATIVE OR AGENTOF LENDERS, NOR AGENT OR ANY OF AGENT’S COUNSEL OR LENDERS’ COUNSEL HAS THEAUTHORITY TO WAIVE, CONDITION, OR MODIFY THIS PROVISION.

 

IN WITNESS WHEREOF, Borrower, Agent and Lenders have caused thisagreement to be effective as of the day and year set forth above.

 
| WITNESSES: | BORROWER:                                              |
|------------|--------------------------------------------------------|
|       |                                                   |   |
|       | TODHUNTER INTERNATIONAL, INC., a  Delaware corporation |
|       |                                                   |   |
| By:        | /s/ Thomas E. Streit                                   |   | By: | /s/ Ezra Shashoua |   |
| By:        | /s/  Beatrice G. Terrell                               |   | Title: Chief Financial Officer & Exec. VP |
|            |                                                        |  |  |  |  |  |

 

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| STATE OF FLORIDA | ) |
|------------------|---|
| COUNTY OF        | ) |

 

The foregoing instrument was acknowledged before me this 30th day ofMarch, 2004 by Ezra Shashoua as Exec VP & CFO of Todhunter International,Inc., on behalf of the corporation. He/She is personally known to me or has produced                      (type of identification) as identification.

 
|   | /s/: Thomas E. Streit                                      |   |
|--------|------------------------------------------------------------|--------|
|   | Notary Public                                              |
|   | State of Florida                                           |
|   |                                                       |   |
|   |                                                       |   |
|   | (Print,  Type or Stamp Commissioned Name of Notary Public) |
|   |                                                       |   |
|        |                                                            |        |  |  |

 
|   | Joined by:                                     |
|--------|------------------------------------------------|
|   |                                           |   |
|   | TODHUNTER FINANCE COMPANY, a Delaware  company |
|   |                                           |
|   |                                           |   |
|   |                                           |   | By: | /s/ Ezra Shashoua |   |
| By:    | /s/ Thomas E. Streit                           |   | TITLE: Chief Financial Officer & Exec. VP |
| By:    | /s/  Beatrice G. Terrell                       |   |   |
|        |                                                |  |  |  |  |  |  |

 

 
| STATE OF FLORIDA | ) |
|------------------|---|
|             | ) |
| COUNTY OF        | ) |

 

The foregoing instrument was acknowledged before me this 30th day ofMarch, 2004 by Ezra Shashoua as Vice President of Todhunter Finance Company, onbehalf of the company.  He/She ispersonally known to me or has produced                    (type of identification) as identification.

 

 
|   | By:                                                        | /s/ Thomas  E. Streit |   |
|--------|------------------------------------------------------------|-----------------------|--------|
|   | Notary Public                                              |
|   | State of Florida                                           |
|   |                                                       |                  |
|   |                                                       |                  |
|   | (Print,  Type or Stamp Commissioned Name of Notary Public) |
|        |                                                            |                       |        |  |

 

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| WITNESSES: | AGENT:                                           |
|------------|--------------------------------------------------|
|       |                                             |   |
|       | SOUTHTRUST BANK, an Alabama banking  corporation |
|       |                                             |
|       |                                             |   |
| By:        | /s/ Charlotte Whaley                             |   | By: | /s/ Tom Turnberger |   |
| By:        | /s/Linda C. Verdi                                |   | Vice President |
|            |                                                  |  |  |  |  |  |

 

 
| STATE OF FLORIDA  | ) |   |
|-------------------|---|--------|
|              | ) |   |
| COUNTY OF BROWARD | ) |   |

 

The foregoing instrument was acknowledged before me this 29th day ofMarch, 2004 by Tom Turnberger as Vice President of SouthTrust Bank, on behalfof the bank.  He/She is personally knownto me or has produced                        (type of identification) as identification.

 

 
|   | By:                                                        | /s/ Florence Lindley |   |
|--------|------------------------------------------------------------|----------------------|--------|
|   | Notary Public                                              |
|   | State of Florida                                           |
|   |                                                       |
|   |                                                       |                 |
|   | (Print,  Type or Stamp Commissioned Name of Notary Public) |
|        |                                                            |                      |        |  |

 

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| WITNESSES: | LENDERS:                                         |
|------------|--------------------------------------------------|
|       |                                             |   |
|       | SOUTHTRUST BANK, an Alabama banking  corporation |
|       |                                             |
|       |                                             |   |
| By:        | /s/ Charlotte Whaley                             |   | By: | /s/ Tom Turnberger |   |
| By:        | /s/Linda C. Verdi                                |   | Vice President |
|            |                                                  |  |  |  |  |  |

 

 
| STATE OF FLORIDA  | ) |   |
|-------------------|---|--------|
|              | ) |   |
| COUNTY OF BROWARD | ) |   |

 

The foregoing instrument was acknowledged before me this 29th day ofMarch, 2004 by Tom Turnberger as Vice President of SouthTrust Bank, on behalfof the bank.  He/She is personally knownto me or has produced                        (type of identification) as identification.

 

 
|   | By:                                                        | /s/ Florence  Lindley |   |
|--------|------------------------------------------------------------|-----------------------|--------|
|   | Notary Public                                              |
|   | State of Florida                                           |
|   |                                                       |                  |
|   |                                                       |                  |
|   | (Print,  Type or Stamp Commissioned Name of Notary Public) |
|   | WITNESSES:                                                 |
|        |                                                            |                       |        |  |

 

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| WITNESSES: | WACHOVIA BANK, NATIONAL  ASSOCIATION |
|------------|--------------------------------------|
|       |                                 |   |
|       |                                 |   |
| By:        | /s/ Michelle Gerber                  |   | By: | /s/ Britton S. Core |   |
| By:        | /s/ Dena P. Bombard                  |   | TITLE: Vice President |
|            |                                      |  |  |  |  |  |

 

 
| STATE OF FLORIDA | ) |   |
|------------------|---|--------|
|             | ) |   |
| COUNTY OF        | ) |   |

 

The foregoing instrument was acknowledged before me this 30th day ofMarch, 2004 by Britton S. Core as Vice President of Wachovia Bank, NationalAssociation, on behalf of the bank. He/She is personally known to me or has produced                     (type of identification) as identification.

 

 
|   | By:                                                        | /s/ Laura S. Forbes |   |
|--------|------------------------------------------------------------|---------------------|--------|
|   | Notary Public                                              |
|   | State of Florida                                           |
|   |                                                       |                |
|   |                                                       |                |
|   | (Print,  Type or Stamp Commissioned Name of Notary Public) |
|        |                                                            |                     |        |  |

 

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| WITNESSES: | SUNTRUST BANK, a Georgia corporation |
|------------|--------------------------------------|
|       |                                 |   |
| By:        | /s/ Lucy DiGirolamo                  |   | By: | /s/ Stephen Hanas |   |
| By:        | /s/ Andrea L. Dankin                 |   | TITLE: Vice President |

 

 
| STATE OF FLORIDA  | ) |   |
|-------------------|---|--------|
|              | ) |   |
| COUNTY OF BROWARD | ) |   |

 

The foregoing instrument was acknowledged before me this 29th day ofMarch, 2004 by Stephen Hanas as Vice President of SunTrust Bank, on behalf ofthe bank.  He/She is personally known tome or has produced                     (type of identification) as identification.

 

 
|   | By:                                                        | /s/ Wende Littario |   |
|--------|------------------------------------------------------------|--------------------|--------|
|   | Notary Public                                              |
|   | State of Florida                                           |
|   |                                                       |               |
|   |                                                       |               |
|   | (Print,  Type or Stamp Commissioned Name of Notary Public) |
|        |                                                            |                    |        |  |

 

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| WITNESSES: | NATIONAL CITY BANK, NATIONAL  ASSOCIATION |
|------------|-------------------------------------------|
|       |                                      |   |
| By:        | /s/ Gavin Young                           |   | By: | /s/ Daniel R. Raynor |   |
| By:        | /s/ Michael Moose                         |   | Title: Assistant Vice President |
|            |                                           |  |  |  |  |  |

 

 
| STATE OF OHIO  | ) |   |
|----------------|---|--------|
|           | ) |   |
| COUNTY OF LAKE | ) |   |

 

The foregoing instrument was acknowledged before me this 29th day ofMarch, 2004 by Daniel R. Raynor as Vice President of National City Bank, onbehalf of the bank.  He/She ispersonally known to me or has produced                    (type of identification) as identification.

 

 
|   | By:                                                        | /s/ Ellen M. Brown |   |
|--------|------------------------------------------------------------|--------------------|--------|
|   | Notary Public                                              |
|   | State of Ohio                                              |
|   |                                                       |
|   |                                                       |               |
|   | (Print,  Type or Stamp Commissioned Name of Notary Public) |
|        |                                                            |                    |        |  |

 

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