EXHIBIT 10.22(f)
MODIFICATION OF CREDIT
AGREEMENT,
WAIVER AND CONSENT
THIS MODIFICATION OF CREDIT
AGREEMENT AND CONSENT (“Modification and Consent”) is
made the 15 th day of August, 2005 (the
“Effective Date”), by and between WACHOVIA BANK,
NATIONAL ASSOCIATION , a national banking association,
(“Lender”), and CRUZAN INTERNATIONAL, INC. , a
Delaware corporation formerly known as Todhunter
International, Inc., a Delaware corporation
(“Borrower”)
W I T N E S S E T
H:
WHEREAS, on October 19, 2001,
Lender, Borrower and other lenders 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 Lender, and other lenders,
to Borrower in an aggregate commitment that is currently of
$40,000,000.00; and
WHEREAS, Lender, as successor by
merger to SouthTrust Bank, is the Administrative Agent and sole
Lender under the Credit Agreement; and
WHEREAS, V&S Vin &
Sprit AB (“V&S”) intends to acquire majority of the
ownership interests in Borrower including those interests held by
Angostura Limited; and
WHEREAS, the owners of Borrower
intend to convert Borrower from a publicly traded corporation to a
privately held corporation;
WHEREAS, these transactions require
certain modifications of the Credit Agreement and/or consent of
Lender with respect to such actions; and
WHEREAS, Lender is willing to amend
the Credit Agreement and to consent to certain actions on the terms
and conditions set forth in this Modification.
NOW, THEREFORE, in consideration of
mutual promises and covenants of this Modification and Consent and
for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lender 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 and Consent. All capitalized terms used herein
shall have the meaning ascribed to them in the Credit Agreement
unless the context shall require otherwise.
2.
Lenders . Wachovia Bank, National Association is
the sole Lender, having received by assignment and mutual agreement
the Loan interests of the other lenders heretofore a party to the
Credit Agreement as Lenders and having succeeded to SouthTrust
Bank’s interests under the Credit Agreement by
merger.
3.
Waiver : Lender hereby agrees to waive
Borrower’s compliance with the provisions of
Section 11.03 (Fixed Charge Coverage) for the period ended
June 30, 2005.
4.
Acquisition of Controlling
Interests . Lender
hereby consents, in accordance with Article X of the Credit
Agreement, to the acquisition by V&S of the majority, and
controlling interests, of Angostura Limited in Borrower.
5.
Control . The definition of “Control”
in Article I is hereby replaced in its entirety with the
following:
“ Control ” means
the ownership by any one Person or group of related Persons of more
than fifty percent (50%) of the outstanding shares of voting stock
of the Borrower or a Subsidiary.
6.
Conversion to Private
Company . To the
extent consent or approval is required, Lender hereby consents to
the Borrower’s becoming a privately held corporation
(including, without limitation, consenting to the merger of the
Borrower with a direct or indirect subsidiary of V&S, the
related changes in the organizational documents of the Borrower,
and the other transactions contemplated thereby) and acknowledges
that upon its successful conversion to a privately held corporation
the requirements of the Credit Agreement based on its being a
publicly held corporation shall be deemed waived for as long as the
Borrower is privately held.
7.
Financial Statements
. The financial statements
required by Section 9.02 to be delivered at the end of each
fiscal year of the Borrower shall be audited by
McGladrey & Pullen, LLP or such other independent
certified public accountants of recognized national standing
proposed by Borrower and otherwise reasonably acceptable to
Lender.
8.
Warranty . Borrower hereby warrants and represents
to Lender that, s
