Exhibit 10.22(e)
MODIFICATION OF CREDIT
AGREEMENT
AND WAIVER
THIS MODIFICATION OF CREDIT
AGREEMENT (“Modification”) is made as of the 20th day
of December, 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
$43,000,000.00; and
WHEREAS, Borrower has requested
Agent and Lenders to make certain modifications to the Credit
Agreement and to waive compliance with certain covenants in the
Credit Agreement; and
WHEREAS, Lenders and Agent are
willing to amend the Credit Agreement and to waive such compliance
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.
Waiver . Subject to the terms of this
Modification, Lenders hereby agree to waive compliance with the
provisions of Section 11.03 (Fixed Charge Coverage) and
Section 11.05 (Funded Debt to EBITDA) of the Credit Agreement
as of the fiscal year ending September 30, 2004 and as of the
fiscal quarter ending December 31, 2004.
4.
Minimum Fixed Charge Coverage
Ratio . Figures
used in the calculation of the Minimum Fixed Charge Coverage Ratio
under Section 11.03 for the fiscal quarters ending
March 31, 2005 through September 30, 2005 shall be actual
year-to-date numbers. Commencing with the fiscal quarter
ending December 31, 2005, the calculation will be made on a
rolling four-quarter basis. The Minimum Fixed Charge Coverage
Ratio for fiscal quarter ending March 31, 2005 shall be 0.75
to 1 and for fiscal quarter ending June 30, 2005 and each
fiscal quarter thereafter shall be 1:00 to 1.
5.
Maximum Funded Debt to EBITDA
Ratio . Figures
used in the calculation of EBITDA for purposes of the Maximum
Funded Debt to EBITDA Ratio under Section 11.05 for the fiscal
quarters ending March 31, 2005 through September 30, 2005
shall be year-to-date results annualized, net of federal income
taxes. Commencing with the fiscal quarter ending
December 31, 2005, the calculation will be made on a rolling
four-quarter basis. The table in Section 11.05 is
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,
unless due sooner pursuant to the terms of the Credit Agreement,
shall be January 31, 2006.
7.
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:
|
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 until
the next recalculation of the Funded Debt to EBITDA Ratio, the
Applicable Margin shall be that at Level IA.
2
8.
Warranty . Borrower hereby warrants and represents
to Lenders that, since June 29, 2004, after giving effect to
this Modification, Borrower has been and is in compliance with all
provi
