Exhibit 10.22(d)


 


MODIFICATION OF
CREDIT AGREEMENT


 


THIS MODIFICATION OF CREDIT AGREEMENT
(“Modification”) is made as of the 29th day of June, 2004 (the “Effective
Date”), 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 (defined below), WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association, formerly known as First Union National Bank, a
national banking association, acting as a lender, (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 Credit Agreement (as
subsequently amended, “Credit Agreement”) in connection with Revolving Loans,
Term Loans and Letters of Credit made available by Lenders, and other lenders,
to Borrower in an aggregate commitment that is currently of $45,000,000.00; and


 


WHEREAS, Borrower has requested Agent and
Lenders to make certain modifications to the Credit Agreement including
modifications of the financial covenants and extension of the Revolving
Termination Date; and


 


WHEREAS, Lenders and Agent are willing to
amend the Credit Agreement on the terms and conditions set forth in this
Modification.


 


NOW, THEREFORE, in consideration of mutual
promises and covenants of this Modification and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Lenders, Agent 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.  All capitalized terms used herein shall have
the meaning ascribed to them in the Credit Agreement unless the context shall
require otherwise.


 


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


 


3.             Definitions.  The definitions of the following terms
defined in Article 1 are revised as follows:


 

















 


“EBITDA”
means, for any period, (i) net income (or loss) of the Borrower and its
Subsidiaries on a consolidated basis for such period, plus (ii) to the
extent deducted in computing net income (or loss), (A) interest expense for
such period, (B) charges against income for foreign, federal, state and local
taxes for such period, (C) depreciation and amortization of intangible assets
during the period, (D) non-cash charges related specifically to FASB 133, FASB
87 and FASB 123 and other non-recurring, non-cash charges during such period,
(E) any extraordinary expense items and/or unusual, non-recurring cash charges
not to exceed $500,000.00 realized during such period, less, (iii)
non-cash credits related specifically to FASB 133, FASB 87 and FASB 123 and any
other non-recurring, non-cash credits for such period, and any gains or losses
on the sale or disposition of assets outside the ordinary course of the
Borrower’s business for such period. 
All of the foregoing shall be determined in accordance with GAAP.  EBITDA will be determined based on the most
recent four (4) fiscal quarters of Borrower. 


 


“Fixed Charge Coverage Ratio” means the ratio
of (i) EBITDA, less capital expenditures, to (ii) Fixed Charges.


 


“Fixed Charges” means cash interest, cash
taxes, scheduled principal payments on Funded Debt and cash dividends paid in
the period in question, but not including any additional principal payments
made by Borrower pursuant to Section 2.09.


 


“Funded Debt” means without duplication, the
principal balance of all indebtedness, for money borrowed, purchase money
mortgages, capitalized leases, conditional sales contracts and similar title
retention debt instruments under which Borrower or any of its Subsidiaries is
an obligor, including any current maturities of such indebtedness, plus all
debt of other entities or Persons, other than Subsidiaries, which has been
guaranteed by the Borrower or any Subsidiary (other than the current balance of
the indebtedness of Premier Wines & Spirits, Ltd. as of October 19,
2001 guaranteed by Borrower), or which is supported by a letter of credit
issued for the account of the Borrower or any Subsidiary which by its terms
matures more than one year from the date of any calculation thereof and/or
which is renewable or extendible at the option of the obligor to a date beyond
one year from such date; provided that,
for the purposes of this Agreement, the calculation of “Funded Debt” as of the
end of Borrower’s first three (3) fiscal quarters shall exclude the bi-weekly
excise tax payments made by Borrower (to the extent such payments are funded
from the Revolving Credit Facility) up to $2,500,000.00 and the calculation of
“Funded Debt” as of the end of Borrower’s fiscal year shall exclude the
bi-weekly excise tax payments made by Borrower (to the extent such payments are
funded from the Revolving Credit Facility) up to $5,000,000.00.  “Funded Debt” shall also exclude the Tank
Loan.


 


“Revolving
Termination Date” shall mean September 29, 2006.


 


2

















 


4.             Fixed
Charge Coverage.  Section 11.03
of the Credit Agreement is hereby replaced in its entirety with the following:


 


SECTION 11.03.  Fixed Charge Coverage.    Maintain at all times a Fixed Charge
Coverage Ratio of not less than 1.00 to 1.00, which shall be tested at each
fiscal quarter end of Borrower for the four consecutive quarters then ended.


 


5.             Liquidity.  Section 11.06 is hereby deleted in its
entirety as of March 30, 2004.


 


6.             Amendment.  Notwithstanding anything in Section 14.07 to
the contrary, amendments to financial covenants will be subject to approval of
Required Lenders unless there are fewer than three (3) Lenders, in which case
all amendments shall be subject to approval of all of the Lenders.


 


7.             Further
Agreement.  Lenders and Borrower
further agree as follows:


 


a.                                       Notwithstanding
anything to the contrary in Sections 10.05 or 10.16 of the Credit
Agreement, Borrower may pay cash dividends in an amount not to exceed 33.33% of
net earnings as long as no event of Default has occurred.


 


b.                                      Borrower’s
Foreign Subsidiaries may increase their investments in Todhunter Finance
Company and Todhunter Barbados (SRL) provided such investments will be used to
increase loans extended by Todhunter Finance Company to Borrower.  All such loans shall be subordinate to the
Loans.


 


c.                                       Borrower
may transfer the Cruzan trademark to a foreign entity of which Borrower or any
of its Subsidiaries owns at least fifty percent.


 


8.             Pricing.  The pricing grid incorporated into the
definition of Applicable Margin in Section 1.01 of the Credit Agreement is
hereby replaced in its entirety with the following:


 


	
   

  	
   

  	
   

  	
   

  	
  Applicable
  Margin

  Revolving Loans

  	
   

  	
  Applicable
  Margin

  Term Loans

  	
   

  
	
  Level

  	
   

  	
  Funded

  Debt/EBITDA

  	
   

  	
  Eurodollar

  Rate

  	
   

  	
  Base Rate

  	
   

  	
  Unused

  Fee

  	
   

  	
  Eurodollar

  Rate

  	
   

  	
  Base Rate

  	
   

  
	
  I

  	
   

  	
  ≤ 3.25 and › 2.50

  	
   

  	
  2.50

  	
  %

  	
  .50

  	
  %

  	
  0.25

  	
  %

  	
  3.00

  	
  %

  	
  0.75

  	
  %

  
	
  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

  	
  %

  



 


3

















 


9.             Warranty.  Borrower hereby warrants and represents to
Lenders that, since May 14, 2003, 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.


 


10.           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
Lenders and Agent that Borrower neither has nor claims any defenses,
counterclaims or offsets to any such obligations or indebtedness.


 


11.           Fees.  The effectiveness of this Modification and
the amendments contemplated herein are expressly conditioned upon the payment
by Borrower to Agent for the prorata benefit of Lenders an amendment fee of
$45,000.00 (based on ten (10) basis points of the current committed amount
($45,000,000)), $13,333.33 of which shall be payable by Agent to Lender
Wachovia Bank, and reimbursement by Borrower of Agent for all reasonable
attorneys’ fees and expenses incurred in connection with this Modification.


 


12.           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 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, Agent and Lenders and their respective heirs, legal representatives,
executors, successors and assigns.


 


13.           RELEASE.  IN CONSIDERATION OF THE ACCOMMODATIONS
PROVIDED HEREIN, BORROWER HEREBY UNCONDITIONALLY IRREVOCABLY AND FOREVER
RELEASES, ACQUITS AND DISCHARGES LENDERS AND EACH OF


 


4

















 


LENDERS’ RESPECTIVE 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 ANY ONE
OR MORE OF THE LENDERS OR ANY ONE OR MORE OF LENDERS’ 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.


 


14.           WAIVER
OF JURY TRIAL.  BORROWER, AGENT AND
LENDERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY 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 REPRESENTATIVE OR AGENT OF
LENDERS, NOR THE AGENT OR ANY OF AGENT’S COUNSEL OR LENDERS’ 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 LENDERS, NOR AGENT OR ANY OF AGENT’S COUNSEL OR
LENDERS’ COUNSEL HAS THE AUTHORITY TO WAIVE, CONDITION, OR MODIFY THIS
PROVISION.


 


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


 


	
  WITNESSES:

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  TODHUNTER INTERNATIONAL, INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/:  Michael V. Mitrione

  	
   

  	
  /s/: Ezra Shashoua, Executive Vice President

  	
   

  
	
  /s/:  Thomas E. Streit

  	
   

  	
   

  
					



 


5

















 


	
  STATE OF FLORIDA

  	
  )

  
	
   

  	
  )

  
	
  COUNTY OF PALM BEACH

  	
  )

  



 


The foregoing instrument was acknowledged
before me this 29th day of June, 2004 by Ezra Shashoua as Executive
Vice President of Todhunter International, Inc., on behalf of the
corporation.  He is personally known to me
or has produced                                       
(type of identification) as identification.


 


 


	
   

  	
  /s/:  Thomas E. Streit

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
  State of Florida

  
	
   

  	
   

  
	
   

  	
  /s/:  Thomas E. Streit

  	
   

  
	
   

  	
  Commission No.  CC982756

  
	
   

  	
  My Commission Expires:  Nov.
  19, 20o04

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESSES:

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  SOUTHTRUST BANK, an Alabama banking corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/:  Michael V. Mitrione

  	
   

  	
  /s/:  Tom Turnberger, Vice
  President

  	
   

  
	
  /s/:  Thomas E. Streit

  	
   

  	
   

  
	
   

  	
   

  
	
  STATE OF FLORIDA

  	
  )

  
	
   

  	
  )

  
	
  COUNTY OF PALM BEACH

  	
  )

  
							



 


The foregoing instrument was acknowledged
before me this 29th day of June, 2004 by Tom Turnberger as Vice
President of SouthTrust Bank, on behalf of the bank.  He is personally known to me or has produced
_____________________ (type of identification) as identification.


 


	
   

  	
  /s/:  Thomas E. Streit

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
  State of Florida

  
	
   

  	
   

  
	
   

  	
  My Commission Expires:  Nov.
  19, 2004

  
	
   

  	
  Commission No.  CC 982756

  
	
   

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

  



 


6

















 


	
  WITNESSES:

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
  SOUTHTRUST BANK, an Alabama banking corporation

  
	
   

  	
   

  
	
   /s/:  Michael V. Mitrione

  	
   

  	
  /s/:  Tom Turnberger, Vice
  President

  	
   

  
	
   /s/:  Thomas E. Streit

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  STATE OF FLORIDA

  	
  )

  
	
   

  	
  )

  
	
  COUNTY OF PALM BEACH

  	
  )

  
						



 


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


 


 


	
   

  	
  /s/:  Thomas E. Streit

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
  State of Florida

  
	
   

  	
   

  
	
   

  	
  My Commission Expires:  Nov.
  19, 2004

  
	
   

  	
  Commission No.  CC982756

  
	
   

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

  
	
   

  	
  WITNESSES:

  



 


7

















 


	
   WITNESSES:

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
  /s/:  Michael V. Mitrione

  	
   

  	
  /s/:  Britton S. Core, Vice
  President

  	
   

  
	
  /s/:  Thomas E. Streit

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  STATE OF FLORIDA

  	
  )

  
	
   

  	
  )

  
	
  COUNTY OF PALM BEACH

  	
  )

  
						



 


The foregoing instrument was acknowledged
before me this 29th day of June, 2004 by Britton S.Core as Vice
President of Wachovia Bank, National Association, on behalf of the
bank.  He/She is personally known to me
or has produced
                                          
(type of identification) as identification.


 


 


	
   

  	
  /s/:  Thomas E. Streit

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
  State of Florida

  
	
   

  	
   

  
	
   

  	
  My Commission Expires:  Nov.
  19, 2004

  
	
   

  	
  Commission No. CC 982756

  
	
   

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

  



 


8