THIRD AMENDMENT AGREEMENT
Exhibit 10.3
THIRD AMENDMENT AGREEMENT (this “Agreement”), dated as of July 5, 2007, 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
and the Second Amendment Agreement dated as of March 23, 2006 (as amended, the “Credit Agreement”).
WITNESSETH:
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 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 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, and the Borrowers shall have
executed and delivered to the Administrative Agent replacement Acquisition Loan
Notes payable to each Lender in the principal amount of each Lender’s Commitment in
respect of the Acquisition Loans, as amended hereby,.
(e) Payment of Amendment Fee. The Borrowers shall have paid to the
Administrative Agent, for the account of the Lenders, the Amendment Fee.
(f) 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. Amendments to the Credit Agreement.
(a) The following definitions in Section 1.1 of the Credit Agreement are hereby amended
and restated in their entirety to read as follows:
Acquisition Loan Termination Date. April 5, 2010.
Consolidated Operating Cash Flow. For any period, an amount equal to
(a) Consolidated EBITDA of Holdings and its Subsidiaries for such period (excluding
the Consolidated EBITDA of any Subsidiary (or with respect to an asset acquisition,
the acquired assets) for the period prior to the acquisition of such Subsidiary (or
assets) by Holdings or any of its Subsidiaries), less (b) the sum of (i)
cash payments for all income taxes paid during such period, plus (ii) to the
extent not already deducted in the determination of Consolidated EBITDA of Holdings
and its Subsidiaries, Capital Expenditures made during such period (excluding
Capital Expenditures made with the proceeds of Indebtedness (other than the Loans)
during such period), provided that, for the purpose of determining
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Consolidated Operating Cash Flow (as a component of Consolidated Adjusted Operating
Cash Flow) for the covenants set forth in Sections 12.1 and 12.2, the Capital
Expenditures referred to in this definition (i.e. the Capital Expenditures deducted
from Consolidated EBITDA pursuant to this clause (ii)) shall not include the Solar
Project Capital Expenditures, plus (iii) the aggregate amount of
Distributions made by Holdings during such period.
Revolving Credit Loan Maturity Date. April 5, 2010.
Term Loan Maturity Date. January 5, 2014.
(b) The following definition is added to Section 1.1 of the Credit Agreement in its
appropriate alphabetical order:
Solar Project Capital Expenditures. Capital Expenditures which are
made for the purpose of outfitting the Watertown facility of Borrowers with solar
panels for electric generation, provided that not more than a gross amount
(i.e. calculated before taking into account any tax credits, grants and other
reductions in the net cost to Borrowers of such Capital Expenditures) of $2,220,000
of Capital Expenditures will be Solar Project Capital Expenditures for the purposes
of this Agreement even if the actual gross amount of such Capital Expenditures is
greater than such amount.
(c) The third sentence of Section 4.8.1 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
As used herein, a “Tranche Ending Date” means any of the following dates: April 5,
2009, April 5, 2010, and any other date designated by the Borrowers in a Payment
Schedule Election Notice; provided that if on April 5, 2009, the amount of
Acquisition Advances outstanding is less than $2,000,000, then such Tranche Ending
Date shall be extended to the earlier of (x) the first date thereafter that the
aggregate amount of Acquisition Advances outstanding is at least $2,000,000 and (y)
April 5, 2010.
(d) Section 5.3.1 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
5.3.1 Schedule of Installment Payments of Principal of Term Loan. The
Borrowers jointly and severally promise to pay to the Administrative Agent for the
account of the Lenders the principal amount of the Term Loan in one hundred five
(105) consecutive monthly payments in an amount equal to the amount set forth in the
table below opposite the period containing the date of such payment, such payments
to be due and payable on the fifth day of each month ending within any period set
forth below in the table in the amount set forth opposite such period in the table
below, commencing on May 5, 2005, with a final payment on the Term Loan Maturity
Date in an amount equal to the unpaid balance of the Term Loan.
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| Period | Amount of Payment | ||||||
May 5, 2005 through and including May 4, 2006
|
$ | 250,000.00 | |||||
May 5, 2006 through and including January 4, 2014
|
$ | 270,833.33 | |||||
|
Term Loan Maturity Date |
Remaining Balance of Term Loan | ||||||
(e) The second sentence of Section 9.17.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
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, and (iii)
to make payments on Subordinated Debt that are permitted by the Subordination
Documents; 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.
(f) 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 1,500,000 shares of such common stock and for aggregate consideration
not to exceed $3,000,000, 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.
(g) Schedule 1 to the Credit Agreement is hereby amended and restated in its
entirety to read as set forth on Schedule 1 to this Agreement.
§6. Amendment Fee. The Borrowers agree to pay to the Administrative Agent on the date
hereof a fee (the “Amendment Fee”) in the amount of $25,000, which fee shall be for the
accounts of the Lenders in accordance with their respective Commitment Percentages.
§7. 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.
§8. 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
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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 |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Manager | |||
| BANK OF AMERICA, N.A., as a Lender |
||||
| By: | /s/ Xxxxxxxxxxx X Xxxxxx | |||
| Name: | Xxxxxxxxxxx X Xxxxxx | |||
| Title: | Senior Vice President | |||
| BANK OF AMERICA, N.A., as Administrative Agent |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Assistant Vice President | |||
| XXXXXXX BANK, NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
SCHEDULE 1
| Commitment | ||||||||||||||||||||||
| Revolving | Percentage | |||||||||||||||||||||
| Credit | Acquisition | (for Revolving | ||||||||||||||||||||
| Loan | Term Loan | Loan | Credit Loans, Term | |||||||||||||||||||
| Name and Address | Commitment | Commitment | Commitment | Loans and | ||||||||||||||||||
| of Lender | Amount | Amount | Amount | Acquisition Loans) | ||||||||||||||||||
Bank of America, N.A.
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000 |
$ | 3,900,000.00 | $ | 18,200,000.00 | $ | 6,500,000 | 65.00 | % | ||||||||||||||
Xxxxxxx Bank,
National Association
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000 |
$ | 2,100,000.00 | $ | 9,800,000.00 | $ | 3,500,000 | 35.00 | % | ||||||||||||||
