SECOND AMENDMENT AGREEMENT
Exhibit 10.2
SECOND AMENDMENT AGREEMENT (this “Agreement”), dated as of March 23, 2006, by and among (1)
Vermont Pure Holdings, Ltd. (“Holdings”), (2) Crystal Rock LLC (“Crystal Rock”, and together with
Holdings, collectively, the “Borrowers”), (3) Bank of America, N.A. (“Bank of America”) and the
other lending institutions party to that certain Credit Agreement (defined below) as lenders
(together with Bank of America, collectively, the “Lenders”), and (4) 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 (as amended, the “Credit Agreement”).
WITNESSETH:
WHEREAS, the Borrowers have requested that the Lenders 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 certain provisions of the Credit Agreement.
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 used herein without definition that are defined in
the Credit Agreement (after giving effect to the amendments thereof set forth herein) shall have
the same meanings herein as therein.
§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 counterclaim, right of set-off or
defense 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 amendments 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 as provided in §3 hereof.
(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.
§5. Amendments to the Credit Agreement.
(a) Section 11.4 of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
“11.4. Restricted Payments. Neither Borrower will make any Restricted
Payments other than, in the case of Holdings, the repurchase of its common stock in
the open market or through privately negotiated transactions in an aggregate amount
not to exceed 250,000 shares of such common stock and for aggregate consideration
not to exceed $500,000, so long as, at the time of any such repurchase, no Default
or Event of Default has occurred and is continuing or would result therefrom.”
(b) Section 18.6(a) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(a) if to the Borrowers, at 00 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx 00000,
Attention: Xxxxx XxxXxxxxx or at such other address for notice as the Borrowers
shall last have furnished in writing to the Person giving the notice, with a copy
to, Xxxxx Xxxx LLP, 000 Xxxxxxx Xxxx., Xxxxxx Xxxxxxxxxxxxx, 00000, Attention: Xxxx
Xxxxxx;”
Each other reference to Cozen X’Xxxxxx as Company counsel in any Loan Document is hereby
replaced with a corresponding reference to Xxxxx Xxxx LLP, as provided above.
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§6. Miscellaneous Provisions.
(a) Upon the amendments herein becoming effective, the Administrative Agent hereby consents to
the election of Xxxxx X. Xxxxx as President and Chief Executive Officer of Holdings and as a
Manager of Crystal Rock in replacement of Xxxxxxx X. Xxxxxx in such capacities and acknowledges and
agrees that the conditions set forth with respect to such replacement in Section 15.1(r) of the
Credit Agreement have been met and that no Default or Event of Default exists thereunder solely by
reason of such replacement.
(b) The Administrative Agent and the Lenders hereby consent to the termination by Holdings of
that certain Lease of Water Rights, dated November 6, 1997, relating to a water spring in Tinmouth,
Vermont (the “Tinmouth Lease”) and acknowledge and agree that the Collateral Assignment of Lease of
Water Rights, dated April 5, 2005, from Holdings to the Administrative Agent with respect to the
Tinmouth Lease shall be terminated and of no further force or effect upon the termination of
Tinmouth Lease. Holdings will provide the Administrative Agent with all documentation reasonably
requested by the Administrative Agent with respect to the termination of the Tinmouth Lease.
(c) 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.
(d) 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.
(e) 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: | CEO | |||
| CRYSTAL ROCK LLC |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Manager | |||
[Signature Page to Second Amendment Agreement]
| BANK OF AMERICA, N.A., as a Lender |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
| BANK OF AMERICA, N.A., as Administrative Agent |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Assistant Vice President | |||
[Signature Page to Second Amendment Agreement]
| XXXXXXX BANK, NATIONAL ASSOCIATION |
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| By: | /s/ Xxxxxxx X. X’Xxxxx | |||
| Xxxxxxx X. X’Xxxxx | ||||
| Senior Vice President | ||||
[Signature Page to Second Amendment Agreement]
