SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment"), dated
as of March 30, 2001, among PEAPOD, INC., a Delaware corporation (the
"Borrower"), and KONINKLIJKE AHOLD NV (the "Lender"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings assigned to
them in the Credit Agreement referred to below.
W I T N E S S E T H:
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WHEREAS, the Borrower and the Lender are parties to a Credit Agreement
dated as of April 14, 2000, as amended by the First Amendment to the Credit
Agreement dated as of February 26, 2001 (such amendment, the "First Amendment"
and, together with credit agreement, the "Credit Agreement");
WHEREAS, the Borrower desires to, from the effective date of this
Second Amendment until the date of receipt of cash proceeds from a debt or
equity financing transaction including, without limitation, a public offering of
capital stock of the Company (the "Financing Transaction"), increase the amount
of Loans it can incur in any one calendar month under the Credit Agreement from
$3,000,000 to $6,000,000, and the Lender is willing to consent to such increase;
WHEREAS, the Borrower has requested that the Lender waive the
condition under the First Amendment that the Borrower shall have delivered
mortgages with respect to leasehold interests of the Borrower prior to the
Borrower making additional borrowings in excess of $6,000,000 in the aggregate
and $3,000,000 in any one month, and the Lender is willing to consent to such
waiver on the terms and conditions set forth below; and
WHEREAS, the parties hereto wish to amend the Credit Agreement and the
First Amendment to reflect such changes;
NOW, THEREFORE, it is agreed that:
1. Amendments.
(a) Section 1.01(b) of the Credit Agreement is hereby amended to read
in its entirety as follows:
"1.01(b) The Borrower may not (i) (A) prior to the date of receipt of
cash proceeds by the Borrower from a debt or equity financing
transaction including, without limitation, a public offering of
capital stock of the Company (the "Financing Transaction"), incur
Loans in excess of $6,000,000 (exclusive of Loans made to repay the
Term Note or other obligations owing to the Lender or its Affiliates)
in principal amount in any calendar month (or such greater amount as
the Lender and the Borrower shall agree), and (B) after the Financing
Transaction, incur Loans in excess of $3,000,000 (exclusive of Loans
made to repay the Term Note or other obligations owing to the Lender
or its Affiliates) in principal amount in any calendar month (or such
greater amount as the Lender and the Borrower shall agree), (ii) incur
Loans more than four times in any calendar month and (iii) incur Loans
in excess of the amount of the budgeted cash flow requirements of the
Borrower for its operations for the two week period following the
Borrowing thereof, as set forth in a budget provided by the Borrower
to the Lender and reasonably acceptable to the Lender; provided,
however, it being understood that the Lender shall not object to the
amount of the Borrowing request on the Second Borrowing Date to the
extent such request is for an amount not to exceed $1,500,000."
(b) Section 6 of the Credit Agreement is hereby amended by inserting
therein the following new Section 6.12:
"6.12 Leasehold Mortgages. The Borrower shall, as promptly as
practicable, but in no event later than the date of the Financing
Transaction (i) duly execute and deliver to the Lender Mortgages with
respect to real estate leasehold interests of the Borrower, and shall
use commercially reasonable efforts to obtain consent and execution of
such Mortgages by the owner/lessor of the leased real proprtery, as
reasonably specified by the Lender in proper form for filing or
recording in each appropriate public office, (ii) deliver to the
Lender an opinion of counsel to the Borrower, in form and substance
satisfactory to the Lender, as to the Mortgages and as to such other
customary matters as the Lender shall specify, and (iii) deliver to
the Lender such other documents and instruments as the Lender shall
reasonably specify with respect to the Mortgages.".
(c) The following new definition is hereby added, in appropriate and
alphabetical sequence, in Section 9 of the Credit Agreement:
"'Financing Transaction' shall have the meaning provided in Section
1.01(b)."
(d) Section 2(a) of the First Amendment is hereby amended to read in
its entirety as follows:
"(a) the Borrower has full power and authority to execute, deliver and
perform this Amendment and each Mortgage (collectively, together with the
UCC financing statements referred to in Section 3 below, the 'Amendment
Documents')".
(e) Section 3 of the First Amendment is hereby amended to read in its
entirety as follows:
"3. Conditions to Effectiveness and to Additional Borrowings. (a)
Section 1 hereof, and the amendments to the Credit Agreement made
pursuant thereto, shall become effective upon the execution and
delivery of counterparts of this Amendment by the Borrower and the
Lender; provided, however, that until the delivery to the Lender of
all documents and instruments specified in paragraphs (i) through (vi)
below, in form and substance satisfactory to the Lender, the Lender
shall not hereafter be obligated to lend to the Borrower more than
$6,000,000 in aggregate principal amount or more than $3,000,000 in
any one month (and the obligation to make any such Loans shall in any
event be subject to the satisfaction of the conditions precedent set
forth in Section 4B of the Credit Agreement before giving effect to
the amendments to the Credit Agreement provided for herein):
(i) UCC-11 search results for the Borrower and its subsidiaries
in each jurisdiction specified by the Lender;
(ii) UCC financing statements with respect to the Collateral,
listing the Borrower and/or its subsidiaries, as specified by the
Lender, as debtor and the Lender as secured party and in proper
form for filing in each jurisdiction specified by the Lender;
(iii) Patent, trademark and copyright collateral assignments with
respect to any registered patents, trademarks and copyrights of
the Borrower and its subsidiaries specified by the Lender;
(iv) Resolutions of the Board of Directors of the Borrower
authorizing the execution, delivery and performance of each
Amendment Document;
(v) Opinion of Sidley & Austin, counsel to the Borrower, in form
and substance satisfactory to the Lender, as to the Amendment
Documents, the transaction contemplated thereby and as to such
other customary matters as the Lender shall specify; and
(vi) Such other documents and instruments as the Lender shall
reasonably specify.".
3. Representations and Warranties. The Borrower repeats and reaffirms
the representations and warranties made by it in Section 5 of the Credit
Agreement with the same effect as though such representations and warranties
were made on and as of the date hereof (and for such purpose all references in
said representations and warranties to "this Agreement" shall refer to the
Credit Agreement as amended hereby), and the Borrower hereby further represents
and warrants to the Lender that (a) the Borrower has full power and authority to
execute, deliver and perform this Second Amendment; (b) this Second Amendment
has been duly executed and delivered by the Borrower and constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms; (c) the execution, delivery and performance by the Borrower of this
Second Amendment does not violate, conflict with or constitute a breach of the
Borrower's articles or certificate of incorporation or By-law, any law
applicable to it or any court order, contract or agreement by which it or its
properties are bound; and (d) no consent, approval or authorization of, or
filing with, any governmental authority, and no consent of any other Person, is
required in connection with the Borrower's execution, delivery, and performance
of this Second Amendment, except for those already duly obtained.
4. Conditions to Effectiveness and to Additional Borrowings. Section 1
hereof, and the amendments to the Credit Agreement made pursuant thereto, shall
become effective upon the execution and delivery of counterparts of this Second
Amendment by the Borrower and the Lender and delivery to the Lender of all
documents and instruments specified in paragraphs (a) through (c) below, in form
and substance satisfactory to the Lender:
(a) Resolutions of the Board of Directors of the Borrower authorizing
the execution, delivery and performance of this Second Amendment;
(b) Opinion of Sidley & Austin, counsel to the Borrower, in form and
substance satisfactory to the Lender, as to this Second Amendment and as to such
other customary matters as the Lender shall specify; and
(c) Such other documents and instruments as the Lender shall
reasonably specify.
5. Miscellaneous.
(a) Expenses. Without limiting the Borrower's obligations under
Section 10.01 of the Credit Agreement, the Borrower agrees to pay all costs and
expenses incurred by the Lender (including, without limitation, reasonable fees
and disbursements of counsel to the Agent) in connection with the preparation,
filing and recordation of this Second Amendment.
(b) WAIVER OF JURY TRIAL. THE BORROWER WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY CLAIM,
COUNTERCLAIM, ACTION OR OTHER PROCEEDING ARISING UNDER OR RELATING TO THIS
SECOND AMENDMENT AND THE CREDIT AGREEMENT AS AMENDED HEREBY.
(c) WAIVER OF CERTAIN CLAIMS. THE BORROWER HEREBY IRREVOCABLY WAIVES
AND RELEASES ANY CLAIMS FOR PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (OR
SIMILAR CLAIMS) WHICH IT MAY NOW OR AT ANY TIME HEREAFTER HAVE AGAINST THE
LENDER HEREUNDER, UNDER ANY CREDIT DOCUMENT OR IN CONNECTION WITH ANY
TRANSACTION CONTEMPLATED HEREIN OR THEREIN.
(d) Governing Law. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflict of laws rules thereof which would make the laws of any other
jurisdiction applicable to this Second Amendment.
(e) Continuing Effectiveness of Credit Agreement. Except as expressly
amended hereby, all terms, conditions, covenants, representations and warranties
contained in the Credit Agreement or any other Credit Document, and all rights
of the Lender and obligations of the Borrower thereunder, shall remain in full
force and effect. The Borrower confirms that the Credit Agreement and all other
Credit Documents are in full force and effect and that the Borrower has no
defenses, setoffs or counterclaims whatsoever to its obligations thereunder.
(f) No Third Party Beneficiaries. No Person other than the parties
hereto shall have any rights hereunder or be entitled to rely on this Second
Amendment, and all third-party beneficiary rights are hereby expressly
disclaimed.
(g) Reference in Credit Documents. From and after the date this Second
Amendment becomes effective, all references to "Credit Agreement" in any Credit
Document shall be to the Credit Agreement as amended hereby and as it may be
further amended, modified, supplemented or restated hereafter.
(h) Effectiveness. This Second Amendment shall become effective when
counterparts of this Second Amendment are signed and delivered (including
delivery by facsimile transmission) by each party hereto.
(i) Counterparts. This Second Amendment may be executed in any number
of separate counterparts, all of which taken together shall be deemed to
constitute one and the same instrument, and all signatures need not appear on
any one counterpart. Any party hereto may execute and deliver a counterpart of
this Second Amendment by delivering to the other party, by facsimile
transmission, the signature page of this Second Amendment signed by such party.
Any party so delivering by facsimile transmission a counterpart of this Second
Amendment signed by it shall promptly thereafter also deliver a manually signed
counterpart of this Second Amendment to the other party.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Second Amendment as of the date
first above written.
Borrower
PEAPOD, INC.
By: /s/ X. xxx Xxxxxx
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Name: X. xxx Xxxxxx
Title: President & Chief Executive
Officer
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Second Amendment as of the date
first above written.
Lender
KONINKLIJKE AHOLD NV
By: /s/ A. M. Meurs
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Name: A. M. Meurs
Title: Executive Vice President
