Exhibit 10.22(c)


 


LENDERS’
CONSENT AND


MODIFICATION
OF CREDIT AGREEMENT


 


THIS LENDERS’ CONSENT AND MODIFICATION OF CREDIT AGREEMENT
(“Modification”) is made as of the 31st day of March, 2004, by and between SOUTHTRUST
BANK, an Alabama banking 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, NATIONAL
CITY 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 banking
association acting as a lender (collectively the “Lenders”), and TODHUNTER
INTERNATIONAL, INC., a Delaware corporation (the “Borrower”), joined
by TODHUNTER
FINANCE COMPANY, a Delaware corporation.


 


W
I T N E S S E T H:


 


WHEREAS,  Agent, Lenders and
Borrower are parties to an Amended and Restated Credit Agreement dated
October 19, 2001 as amended by Modification of Credit Agreement dated
May 14, 2003 (the “Credit Agreement”) and that certain Waiver of Defaults
under Credit Agreement dated as of January 1, 2003 (“Waiver”) in
connection with Revolving Loans, Term Loans and Letters of Credit made
available by Lenders to Borrower thereunder; and


 


WHEREAS, Borrower desires to improve its financial position through a
series of transactions that entail, among other things, the creation of two
subsidiary corporations – one a Foreign Subsidiary (Todhunter (Barbados) SRL, a
Barbados company) and one a Domestic Subsidiary (Todhunter Finance Company, a
Delaware corporation) – and acceptance of an $18,000,000.00 loan from Todhunter
Finance Company, all as more particularly described in letter dated
March 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 the
consent of Required Lenders under the Credit Agreement and other aspects of the
Borrower’s Transactions conflict with certain Borrower’s covenants in the
Credit Agreement; and


 


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


 


NOW, THEREFORE, in consideration of mutual promises and covenants of
this Agreement 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 Agreement.  All capitalized terms used herein shall have
the meaning ascribed to them in the Credit Agreement unless the context shall
require otherwise.


 


2.             Revolving
Commitment Amount.  The parties
acknowledge that Borrower has given Agent effective notice to reduce
permanently the amount of the Revolving Commitment to $15,000,000.00 in
accordance with Section 2.12 of the Credit Agreement and that the
Revolving Commitment is thus permanently reduced as of April 2, 2004.


 


3.             Creation
of Subsidiaries.  Notwithstanding
Borrower’s covenants in Section 10.09 of the Credit Agreement, Lenders
consent to Borrower’s creation of Todhunter (Barbados) SRL as a Foreign
Subsidiary and Todhunter Finance Company as a Domestic Subsidiary for purposes
of performing the Borrower’s Transactions.


 


4.             Indebtedness
to Domestic Subsidiary. 
Notwithstanding Borrower’s covenants in Section 10.01 of the Credit
Agreement, Lenders hereby consent to Borrower’s incurring indebtedness in favor
of Todhunter Finance Company on the terms of the Promissory Note attached
hereto as Exhibit ”A”, for as long as Todhunter Finance Company remains a
Subsidiary and provided that Todhunter Finance Company subordinates any and all
claims against Borrower with respect to such indebtedness to the Obligations,
subject only to regularly scheduled payments of principal and interest under
said Promissory Note as long as there exists no default with respect to the
Obligations.  Todhunter Finance Company
joins in this Agreement for the sole purpose of unconditionally subordinating
any and all claims against Borrower with respect to such indebtedness to the
Obligations, subject to the aforementioned right to receive regularly scheduled
payments as long as Borrower is not in default with respect to the Obligations.  Lenders’ consent to Borrower’s incurring
such indebtedness is hereby given notwithstanding any covenants of Borrower to
the contrary in Section 10.08 or Section 10.10.


 


5.             Pledge
of Foreign Subsidiary Stock.  The
foregoing Lenders’ consent to the Borrower’s Transactions is further conditioned
upon Borrower and/or the appropriate Subsidiary pledging the required
percentage of the Voting Securities of Todhunter (Barbados) SRL to the Agent
for the benefit of the Agent and Lenders pursuant to Section 5.01 of the
Credit Agreement.  Borrower and/or the
appropriate Subsidiaries shall evidence such pledge by an amendment to the
Pledge Agreement dated October 19, 2001 (the “Pledge Agreement”) and such
pledge shall be perfected by delivery to the Agent of the requisite Stock
Certificates, as defined and described in the Pledge Agreement, together with
blank stock powers. Such original Stock Certificates shall be delivered to
Lender within sixty (60) days from the execution hereof. Borrower warrants and
represents to Lender, recognizing that Lender is relying on such in entering
into this Modification, that there are no shareholder agreements or other
agreements granting any rights of approval, consent, management or control to
the holder of any non-Voting Securities of Todhunter (Barbados) SRL.


 


6.             Modification
of Credit Agreement.  To the extent
necessary to allow the Borrower’s Transactions specifically described in this
Agreement, the Credit Agreement shall be deemed amended, provided, however,
that such approvals and amendment shall apply only to the Borrower’s
Transactions and that any similar transactions in the future shall require
additional approval of Required Lenders.


 


2

















 


7.             Warranty.  Borrower hereby warrants and represents to
Lenders that, since the date of the Modification of Credit Agreement, 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.


 


8.             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.


 


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


 


10.           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 Agreement.  In the event the terms of this Agreement
conflict with the terms of the  Credit
Agreement, the terms of this Agreement shall control.


 


(b)  This Agreement 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 Agreement.  All provisions of the Credit Agreement and each of the other Loan
Documents shall remain in full force and effect as modified by this
Agreement.  Without limiting the
generality of any of the provisions of this Agreement, 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 Agreement 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 Agreement shall be
binding upon and inure to the benefit of Borrower, Agent and Lenders and their
respective heirs, legal representatives, executors, successors and assigns.


 


11.           RELEASE.  IN CONSIDERATION OF THE ACCOMMODATIONS
PROVIDED HEREIN, BORROWER HEREBY UNCONDITIONALLY IRREVOCABLY AND FOREVER
RELEASES, ACQUITS AND DISCHARGES LENDERS AND EACH OF LENDERS’ RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND


 


3

















 


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 AGREEMENT, 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.


 


12.           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 AGREEMENT 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 AGREEMENT 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

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Thomas E. Streit

  	
   

  	
  By:

  	
  /s/ Ezra Shashoua

  	
   

  
	
  By:

  	
  /s/
  Beatrice G. Terrell

  	
   

  	
  Title: Chief Financial Officer & Exec. VP

  
							



 


4

















 


	
  STATE OF FLORIDA

  	
  )

  
	
  COUNTY OF

  	
  )

  



 


The foregoing instrument was acknowledged before me this 30th day of
March, 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 of
March, 2004 by Ezra Shashoua as Vice President of Todhunter Finance Company, on
behalf of the company.  He/She is
personally 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)

  
					



 


5

















 


	
  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 of
March, 2004 by Tom Turnberger as Vice President of SouthTrust Bank, on behalf
of the bank.  He/She is personally known
to 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)

  
					



 


6

















 


 


	
  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 of
March, 2004 by Tom Turnberger as Vice President of SouthTrust Bank, on behalf
of the bank.  He/She is personally known
to 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:

  
					



 


7

















 


	
  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 of
March, 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.


 


 


	
   

  	
  By:

  	
  /s/ Laura S. Forbes

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
  State of Florida

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  
					



 


8

















 


 


	
  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 of
March, 2004 by Stephen Hanas as Vice President of SunTrust Bank, on behalf of
the bank.  He/She is personally known to
me 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)

  
					



 


9

















 


	
  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 of
March, 2004 by Daniel R. Raynor as Vice President of National City Bank, on
behalf of the bank.  He/She is
personally 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)

  
					



 


10