**Exhibit 10.22(e)**

 

**MODIFICATION OF CREDIT AGREEMENT**

**AND WAIVER**

 

 

THIS MODIFICATION OF CREDITAGREEMENT (“Modification”) is made as of the 20th day of December, 2004 (the “EffectiveDate”), by and between **SOUTHTRUST BANK**,an Alabama corporation, formerly known as SouthTrust Bank, National Associationacting as a Lender and as Administrative Agent and Funding Agent (collectively “Agent”)pursuant to the Credit Agreement (defined below), **WACHOVIABANK, NATIONAL ASSOCIATION**, a national banking association, formerlyknown as First Union National Bank, a national banking association, acting as alender, (together, the “Lenders”), and **TODHUNTER INTERNATIONAL,INC.**, a Delaware corporation (the “Borrower”)

 

**W I T N E S S E T H:**

 

WHEREAS, On October 19,2001, Agent, Lenders and Borrower entered into an Amended and Restated CreditAgreement (as subsequently amended, “Credit Agreement”) in connection withRevolving Loans, Term Loans and Letters of Credit made available by Lenders,and other lenders, to Borrower in an aggregate commitment that is currently of$43,000,000.00; and

 

WHEREAS, Borrower has requestedAgent and Lenders to make certain modifications to the Credit Agreement and towaive compliance with certain covenants in the Credit Agreement; and

 

WHEREAS, Lenders and Agent arewilling to amend the Credit Agreement and to waive such compliance on the termsand conditions set forth in this Modification.

 

NOW, THEREFORE, inconsideration of mutual promises and covenants of this Modification and forother good and valuable consideration, the receipt and sufficiency of which ishereby acknowledged, Lenders, Agent and Borrower agree as follows:

 

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

 

2.             Lenders.  SouthTrust Bank and Wachovia Bank, NationalAssociation are the sole Lenders, having received by assignment and mutualagreement the Loan interests of the other lenders heretofore a party to theCredit Agreement as Lenders.  As of theEffective Date hereof, the Credit Percentage of SouthTrust Bank is 55.5556% andthe Credit Percentage of Wachovia Bank, National Association is 44.4444%.

 

3.             Waiver.  Subject to the terms of this Modification, Lendershereby agree to waive compliance with the provisions of Section 11.03(Fixed Charge Coverage) and Section 11.05 (Funded Debt to EBITDA) of theCredit Agreement as of the fiscal year ending September 30, 2004 and as ofthe fiscal quarter ending December 31, 2004.

 

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4.             MinimumFixed Charge Coverage Ratio.  Figuresused in the calculation of the Minimum Fixed Charge Coverage Ratio underSection 11.03 for the fiscal quarters ending March 31, 2005 throughSeptember 30, 2005 shall be actual year-to-date numbers.  Commencing with the fiscal quarter endingDecember 31, 2005, the calculation will be made on a rolling four-quarterbasis.  The Minimum Fixed Charge CoverageRatio for fiscal quarter ending March 31, 2005 shall be 0.75 to 1 and forfiscal quarter ending June 30, 2005 and each fiscal quarter thereaftershall be 1:00 to 1.

 

5.             MaximumFunded Debt to EBITDA Ratio.  Figuresused in the calculation of EBITDA for purposes of the Maximum Funded Debt toEBITDA Ratio under Section 11.05 for the fiscal quarters endingMarch 31, 2005 through September 30, 2005 shall be year-to-dateresults annualized, net of federal income taxes.  Commencing with the fiscal quarter endingDecember 31, 2005, the calculation will be made on a rolling four-quarterbasis.  The table in Section 11.05is replaced in its entirety with the following:

 
| **Ratio** | ** ** | **For  Fiscal Quarter Ending**                        |
|-----------|------------|-------------------------------------------------------|
|      |       |                                                  |
| 4:00 to 1 |       | March 31, 2005                                        |
| 3:25 to 1 |       | June 30, 2005                                         |
| 3:25 to 1 |       | September 30, 2005                                    |
| 3:00 to 1 |       | December 31, 2005 and each fiscal quarter  thereafter |

 

6.             Maturity.  The maturity date for all Obligations, unlessdue sooner pursuant to the terms of the Credit Agreement, shall beJanuary 31, 2006.

 

7.             Pricing.  The pricing grid incorporated into thedefinition of Applicable Margin in Section 1.01 of the Credit Agreement ishereby replaced in its entirety with the following:

 
| **Level**  | ** ** | **Funded  Debt/EBITDA**    | ** ** | **Applicable Margin  Revolving Loans** | ** ** | **Applicable Margin  Term Loans** | ** ** |
|------------|------------|----------------------------|------------|----------------------------------------|------------|-----------------------------------|------------|
| ** ** | ** ** | ** **                 | ** ** | **Eurodollar  Rate**                   | ** ** | **Base Rate**                     | ** ** | **Unused  Fee** | ** ** | **Eurodollar  Rate** | ** ** | **Base Rate** | ** ** |
| IA         |       | < 4.00 and ›  3.25 |       | 3.00                                   | %          | 1.00                              | %          | 0.25 | % | 3.50 | % | 1.25 | % |
| I          |       | < 3.25 and ›  2.50 |       | 2.75                                   | %          | .75                               | %          | 0.25 | % | 3.25 | % | 1.00 | % |
| II         |       | <2.50 and ›  2.00  |       | 2.25                                   | %          | 0.50                              | %          | 0.25 | % | 2.75 | % | 0.75 | % |
| III        |       | < 2.00 and ›  1.50 |       | 2.00                                   | %          | 0.25                              | %          | 0.25 | % | 2.50 | % | 00.50 | % |
| IV         |       | < 1.50                  |       | 1.75                                   | %          | 0.25                              | %          | 0.25 | % | 2.25 |   | 0.50 | % |

 

As of the Effective Date and untilthe next recalculation of the Funded Debt to EBITDA Ratio, the ApplicableMargin shall be that at Level IA.

 

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8.             Warranty.  Borrower hereby warrants and represents to Lendersthat, since June 29, 2004, after giving effect to this Modification,Borrower has been and is in compliance with all provisions of the Credit Agreementand all other Loan Documents and that no Default or Event of Default hasoccurred thereunder nor has any event occurred or failed to occur which withthe passage of time or the giving of notice or both would comprise such aDefault or Event of Default.

 

9.             Ratifications.  Borrower hereby ratifies and confirms each ofits 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.

 

10.           Fees.  The effectiveness of this Modification andthe amendments and waivers contemplated herein are expressly conditioned uponthe payment by Borrower to Agent for the prorata benefit of Lenders anamendment fee of $107,500.00 (based on .25% of the current committed amount ($43,000,000.00)),$47,777.73 of which shall be payable by Agent to Lender Wachovia Bank, andreimbursement by Borrower of Agent for all reasonable attorneys’ fees andexpenses incurred in connection with this Modification.

 

11.           Miscellaneous.

 

(a)  This agreement shall be governed by andconstrued in accordance with the laws of the State of Florida.  Paragraph headings used herein are forconvenience 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 Modificationconflict with the terms of the  CreditAgreement, the terms of this Modification shall control.

 

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

 

(c)  This Modification may be executed in anynumber 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 andinure to the benefit of Borrower, Agent and Lenders and their respective heirs,legal representatives, executors, successors and assigns.

 

12.           RELEASE.  IN CONSIDERATION OF THE ACCOMMODATIONSPROVIDED HEREIN, BORROWER HEREBY UNCONDITIONALLY IRREVOCABLY

 

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AND FOREVER RELEASES, ACQUITS AND DISCHARGESLENDERS AND EACH OF LENDERS’ RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTSAND COUNSEL FROM ANY AND ALL CLAIMS, DEMANDS AND CAUSES OF ACTION THAT ANY OFTHEM HAD, NOW HAS OR MAY IN THE FUTURE HAVE AGAINST ANY ONE OR MORE OF THE LENDERSOR ANY ONE OR MORE OF LENDERS’ OFFICERS, DIRECTORS, EMPLOYEES, AGENTS ORCOUNSEL 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 MODIFICATION, WHICH RELATED TO ANY CLAIMS ARISING OUT OF OR CONNECTED INANY MANNER WITH THE TRANSACTIONS CONTEMPLATED HEREIN OR IN THE CREDIT AGREEMENTAS AMENDED HEREBY OR ANY OTHER LOAN DOCUMENTS AS THE SAME MAY BE AMENDEDHEREBY, AS THE CASE MAY BE.

 

13.           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 MODIFICATION 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 MODIFICATION AND MAKING ANY LOAN, ADVANCE OR OTHEREXTENSION OF CREDIT TO BORROWER. FURTHER, BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OFLENDERS, NOR THE AGENT OR ANY OF AGENT’S COUNSEL OR LENDERS’ COUNSEL, HASREPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT OR ANY OF AGENT’S COUNSEL ORLENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVEROF RIGHT TO JURY TRIAL PROVISION.  NOREPRESENTATIVE OR AGENT OF LENDERS, NOR AGENT OR ANY OF AGENT’S COUNSEL ORLENDERS’ COUNSEL HAS THE AUTHORITY TO WAIVE, CONDITION, OR MODIFY THISPROVISION.

 

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

 
| WITNESSES:            |   | BORROWER:                                              |
|-----------------------|--------|--------------------------------------------------------|
|                  |   |                                                   |
|                  |   | TODHUNTER INTERNATIONAL, INC., a Delaware  corporation |
|                  |   |                                                   |
|                  |   |                                                   |
| /s/: William Viggiano |   | By:                                                    | /s/ | Ezra Shashoua |   |   |
|                  |   | Title:                                                 |   | Executive Vice President & CFO |   |
| /s/: Rose Siebeneck   |   |                                                   |

 

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| STATE OF FLORIDA     | ) |   |
|----------------------|---|--------|
|                 | ) |   |
| COUNTY OF PALM BEACH | ) |   |

 

The foregoing instrument was acknowledgedbefore me this 20th day of December, 2004 by Ezra Shashoua as EVP & CFO ofTodhunter International, Inc., on behalf of the corporation.  He is personally known to me or has produced                          (typeof identification) as identification.

 

 
|   | /s/:                                                      | Jennifer Lubrano-Murphy |   |
|--------|-----------------------------------------------------------|-------------------------|--------|
|   | Notary Public                                             |
|   | State of Florida                                          |
|   |                                                      |
|   | /s/:                                                      | Jennifer Lubrano-Murphy |   |
|   | (Print, Type or Stamp Commissioned Name of Notary Public) |

 

 
| WITNESSES:            |   | AGENT:                                           |
|-----------------------|--------|--------------------------------------------------|
|                  |   |                                             |
|                  |   | SOUTHTRUST BANK, an Alabama banking  corporation |
|                  |   |                                             |
|                  |   |                                             |
|                  |   | By:                                              | /s/ | Tom Turnberger |   |
| /s/: William Viggiano |   |                                             |
| /s/: Rose Siebeneck   |   | Title: Vice President                            |

 

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

 

The foregoing instrument wasacknowledged before me this 20th day of December, 2004 by TomTurnberger as Vice President of SouthTrust Bank, on behalf of the bank.  He is personally known to me or has produced                          (typeof identification) as identification.

 
|   | /s/:                                                      | Jennifer Lubrano-Murphy |   |
|--------|-----------------------------------------------------------|-------------------------|--------|
|   | Notary Public                                             |
|   | State of Florida                                          |
|   |                                                      |
|   | /s/:                                                      | Jennifer Lubrano-Murphy |   |
|   | (Print, Type or Stamp Commissioned Name of Notary Public) |

 

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| WITNESSES:             |   | LENDERS:                                         |
|------------------------|--------|--------------------------------------------------|
|                   |   |                                             |
|                   |   | SOUTHTRUST BANK, an Alabama banking  corporation |
|                   |   |                                             |
| /s/: Willilam Viggiano |   | By:                                              | /s/ | Tom Turnberger |   |
| /s/: Rose Siebeneck    |   | Title: Vice President                            |

 

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

 

The foregoing instrument wasacknowledged before me this 20th day of December, 2004 by Tom Turnberger asVice President of SouthTrust Bank, on behalf of the bank.  He is personally known to me or has produced                          (typeof identification) as identification.

 

 
|   | /s/:                                                      | Jennifer Lubrano-Murphy |   |
|--------|-----------------------------------------------------------|-------------------------|--------|
|   | Notary Public                                             |
|   | State of Florida                                          |
|   |                                                      |
|   |                                                      |
|   | /s/:                                                      | Jennifer Lubrano-Murphy |   |
|   | (Print, Type or Stamp Commissioned Name of Notary Public) |
|   | WITNESSES:                                                |

 

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| WITNESSES:           |   | WACHOVIA BANK, NATIONAL ASSOCIATION |
|----------------------|--------|-------------------------------------|
|                 |   |                                |
|                 |   |                                |
| /s/:William Viggiano |   | By:                                 | /s/ |  Britt Core |   |
| /s/: Rose Siebeneck  |   | Title: Vice President               |

 

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

 

The foregoing instrument wasacknowledged before me this 20th day of December, 2004 by Britt Core as VicePresident of Wachovia Bank, National Association, on behalf of the bank.  He/She is personally known to me or hasproduced                         (typeof identification) as identification.

 

 
|   | /s/:                                                      | Jennifer Lubrano-Murphy |   |
|--------|-----------------------------------------------------------|-------------------------|--------|
|   | Notary Public                                             |
|   | State of Florida                                          |
|   |                                                      |
|   | /s/:                                                      | Jennifer Lubrano-Murphy |   |
|   | (Print, Type or Stamp Commissioned Name of Notary Public) |

 

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