FOURTH AMENDMENT AGREEMENT
EXHIBIT 10.1
FOURTH AMENDMENT AGREEMENT (this “Agreement”), dated as of May 22, 2008, by and among Vermont
Pure Holdings, Ltd. (“Holdings”), Crystal Rock LLC (“Crystal Rock”, and together with Holdings,
collectively, the “Borrowers”), Bank of America, N.A. (“Bank of America”) and the other lending
institutions party to that certain Credit Agreement (as defined below) as lenders (together with
Bank of America, collectively, the “Lenders”), and Bank of America, as administrative agent (the
“Administrative Agent”) for itself and the other Lenders with respect to a certain Credit
Agreement, dated as of April 5, 2005, by and among the Borrowers, the Lenders and the
Administrative Agent, as amended by the First Amendment Agreement, dated as of September 1, 2005,
the Second Amendment Agreement dated as of March 23, 2006, the Third Amendment Agreement, dated as
of July 5, 2007 and the Waiver Agreement, dated as of September 14, 2007 (as amended, the “Credit
Agreement”).
W I T N E S S E T H:
WHEREAS, the Borrowers have requested that the Lenders agree to amend certain terms and
conditions of the Credit Agreement on the terms and conditions set forth herein; and
WHEREAS, the parties hereto have agreed to amend the Credit Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
§1. Definitions. Capitalized terms that are used herein and are not defined herein have the
meanings given to such terms in the Credit Agreement (after giving effect to the amendments thereof
set forth herein).
§2. Ratification of Existing Agreements. All of the Borrowers’ obligations and liabilities to
the Lenders as evidenced by or otherwise arising under the Credit Agreement, the Notes and the
other Loan Documents, are, by the Borrowers’ execution of this Agreement, ratified and confirmed in
all respects. In addition, by the Borrowers’ execution of this Agreement, each Borrower represents
and warrants that it does not have any defense, counterclaim, or right of set-off or recoupment of
any kind with respect to such obligations and liabilities.
§3. Representations and Warranties. Each Borrower hereby represents and warrants to the
Lenders that all of the representations and warranties made by the Borrowers in the Credit
Agreement, the Notes and the other Loan Documents are true in all material respects on the date
hereof as if made on and as of the date hereof, except to the extent that such representations and
warranties relate expressly to an earlier date.
§4. Conditions Precedent. The effectiveness of the amendment contemplated hereby shall be
subject to the satisfaction on or before the date hereof of each of the following conditions
precedent:
(a) Representations and Warranties. All of the representations and warranties
made by the Borrowers herein, whether directly or incorporated by reference, shall be true
and correct on the date hereof except to the extent that such representations and warranties
relate expressly to an earlier date.
(b) Performance; No Event of Default. Each Borrower shall have performed and
complied in all respects with all terms and conditions herein required to be performed or
complied with by it prior to or at the time hereof, and there shall exist no Default or
Event of Default.
(c) Corporate or Limited Liability Company Action. All requisite corporate or
limited liability company, as applicable, action necessary for the valid execution, delivery
and performance by each Borrower of this Agreement and all other instruments and documents
delivered by each Borrower in connection therewith shall have been duly and effectively
taken.
(d) Delivery. The parties hereto shall have executed this Agreement and
delivered this Agreement to the Administrative Agent.
(e) Payment of Fees and Expenses. The Borrowers shall have paid to the
Administrative Agent in immediately available funds all fees and expenses, including
reasonable legal fees, incurred by the Administrative Agent in connection with this
Agreement, the Credit Agreement or the other Loan Documents on or prior to the date hereof.
§5. Amendment to the Credit Agreement.
(a) Section 9.17.1 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
9.17.1 General. The proceeds of the Revolving Credit Loans and
the Term Loan shall be used (a) to refinance all of the Borrowers’
outstanding Indebtedness owing under the Xxxxxxx Loan (b) to repay a portion
of the Seller Subordinated Debt on the Closing Date in the aggregate amount
of $3,600,000 and (c) for working capital and general corporate purposes.
The proceeds of the Acquisition Loans shall be used solely (i) to finance
Permitted Acquisitions, (ii) to finance the purchase, redemption,
defeasance, retirement or other acquisition of any shares of any class of
Capital Stock of Holdings, (iii) to make payments on Subordinated Debt that
are permitted by the Subordination Documents, and (iv) to finance Capital
Expenditures; no proceeds of the Term Loan shall be used for any of the
purposes set forth in clauses (i), (ii) and (iii) of this sentence. The
Borrowers will obtain Letters of Credit solely for general corporate
purposes.
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§6. Expenses, Etc. The Borrowers agree to pay to the Administrative Agent upon demand an
amount equal to any and all out-of-pocket costs or expenses (including reasonable legal fees and
disbursements) incurred or sustained by the Administrative Agent in connection with the preparation
of this Agreement and related matters.
§7. Miscellaneous Provisions.
(a) Except as otherwise expressly provided by this Agreement, all of the respective
terms, conditions and provisions of the Credit Agreement, the Notes and the other Loan
Documents shall remain the same. The Credit Agreement, as amended hereby, the Notes and the
other Loan Documents shall continue in full force and effect, and this Agreement and the
Credit Agreement shall be read and construed as one instrument.
(b) This Agreement is intended to take effect under, and shall be construed according
to and governed by, the laws of the State of New York.
(c) This Agreement may be executed in any number of counterparts, but all such
counterparts shall together constitute but one instrument. In making proof of this
Agreement it shall not be necessary to produce or account for more than one counterpart
signed by each party hereto by and against which enforcement hereof is sought. A facsimile
of an executed counterpart shall have the same effect as the original executed counterpart.
[Remainder of page intentionally blank; Signature Pages follow]
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IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be executed in
its name and behalf by its duly authorized officer as of the date first written above.
| VERMONT PURE HOLDINGS, LTD. |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
| CRYSTAL ROCK LLC |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Manager and Chief Executive Officer | |||
| BANK OF AMERICA, N.A., as a Lender |
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| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | SVP | |||
| BANK OF AMERICA, N.A., as Administrative Agent |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | SVP | |||
| XXXXXXX BANK, NATIONAL ASSOCIATION |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
