exh10_1.htm


 










 



Exhibit 10.1


 


 SECOND AMENDMENT AGREEMENT


 


SECOND AMENDMENT AGREEMENT (this “Agreement”), dated as of May 14, 2012, by and among Crystal Rock Holdings, Inc., individually and as successor by merger to 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 Amended and Restated Credit Agreement dated as of April 5, 2010, as amended by that certain First Amendment Agreement dated as of September 28, 2010 (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. Amendments to the Credit Agreement.


 


(a) The definition of “Consolidated Adjusted Operating Cash Flow” appearing in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:


 


 


Consolidated Adjusted Operating Cash Flow.  For any period, an amount equal to the sum of (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), plus (b) an amount equal to seventy-five percent (75%) of Acquired Company EBITDA for such period, plus (c) for the Reference Periods ended April 30, 2012, July 31, 2012 and October 31, 2012, $965,000.


 


(b) Section 10.4 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:


 


 


10.4           Restricted Payments.  No 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 (a) in an aggregate amount not to exceed 100,000 shares of such common stock for aggregate consideration not to exceed $150,000 and (b) for aggregate consideration not to exceed $500,000 in respect of other repurchases in addition to those in clause (a), so long as, in each case under clauses (a) and (b) above, at the time of any such repurchase, no Default or Event of Default has occurred and is continuing or would result therefrom.


 


 




  





  











  






 


§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 (excluding the laws applicable to conflicts or choice of law).


 


(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.


 







 







 


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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.


 


 






 



	 	 CRYSTAL ROCK HOLDINGS, INC.
	 	 
	 	 
	 	 
	 	 By:    /s/ Peter K. Baker
	 	           Name: Peter K. Baker
	 	           Title: Chief Executive Officer
	 	 
	 	 CRYSTAL ROCK LLC
	 	 
	 	 
	 	 
	 	 By:    /s/ Peter K. Baker
	 	           Name: Peter K. Baker
	 	           Title:  Manager and Chief Executive Officer
	 	 
	 	 BANK OF AMERICA, N.A., as Administrative 
	 	 Agent and Lender
	 	 
	 	 
	 	 
	 	 By:   /s/ Matthew E. Hummel
	 	         Name: Matthew E. Hummel
	 	         Title: Senior Vice President and Senior Client Manager