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EXHIBIT 10.21
AMENDMENT NO. 4, WAIVER, CONSENT AND RELEASE
TO
CREDIT AGREEMENT
This AMENDMENT NO. 4, WAIVER, CONSENT AND RELEASE to CREDIT AGREEMENT
(this "Agreement"), dated as of December 21, 2000, is entered into by and among
Florists' Transworld Delivery, Inc. (the "Borrower"), IOS Brands Corporation,
formerly known as FTD Corporation ("IOS"), the financial institutions party
hereto (the "Lenders"), the Required Lenders (as defined in the Credit Agreement
referred to below), and Bank One, NA, as contractual representative for the
Lenders (the "Agent") under that certain Credit Agreement dated as of November
20, 1997 (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings given to them in
the Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, IOS, the Lenders and the Agent entered into the
Credit Agreement;
WHEREAS, the Borrower, under the terms of the Credit Agreement, agreed
to pledge certain interests in its Subsidiaries to the Agent on behalf of the
Lenders in order to secure its repayment of the Obligations;
WHEREAS, pursuant to the terms of the Amended and Restated Pledge
Agreement, dated as of May 10, 1999 (as the same may be amended, restated,
supplemented, or otherwise modified from time to time, the "Pledge Agreement"),
by and between the Borrower and the Agent on behalf of the Lenders, the Borrower
pledged to the Agent for itself and for the "Holders of Secured Obligations"
under the Credit Agreement one-hundred percent of the Class B common stock of
its Subsidiary XXX.XXX INC. (such capital stock, the "DotCom Stock");
WHEREAS, subsequent to the date of the Pledge Agreement, XXX.XXX
declared a 12-for-1 stock split (the "Stock Split") of the DotCom Stock that
resulted in additional shares of DotCom Stock being acquired by the Borrower,
which additional shares were not evidenced by a certificate;
WHEREAS, pursuant to Section 1(b) of the Pledge Agreement, all
additional shares of DotCom Stock acquired by the Borrower as a result of the
Stock Split, which shares, along with the shares delivered to the Agent in
connection with the Pledge Agreement, constituted one-hundred percent of the
DotCom Stock, were pledged to the Agent for itself and for the Holders of the
Secured Obligations;
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WHEREAS, subsequent to the Stock Split, the Borrower transferred a
portion of the DotCom Stock acquired by the Borrower as a result of the Stock
Split equal to 525,000 shares (the "Transferred Shares") to Xxxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxxxxxxx and Xxxxxxx Xxxxxxxxx, all of whom are officers of the
Borrower (the "Transfer" and, together with the Stock Split, the "Subsequent
Events");
WHEREAS, the DotCom Stock constitutes "Pledged Collateral" under
the Pledge Agreement and the terms thereof prohibit the Borrower from
transferring any Pledged Collateral without receipt of the prior written consent
of the Agent;
WHEREAS, as a result of the Subsequent Events, a Default has
occurred under the Credit Agreement (the "DotCom Default");
WHEREAS, the Borrower has requested that the Lenders and the Agent
(i) provide a limited waiver under the Credit Agreement with respect to the
DotCom Default, (ii) consent to the Transfer and (iii) release its Lien on the
Transferred Shares;
WHEREAS, the Lenders and the Agent are willing to provide the
requested limited waiver, consent and release under the Credit Agreement on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above,
the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrower, IOS, the Agent and the Lenders hereby agree as follows:
1. Limited Waiver for DotCom Default and Consent to the Transfer.
Effective as of the date hereof, as expressly limited hereby and subject to the
satisfaction of the conditions precedent set forth in Section 3 below, (a) the
Lenders and the Agent hereby agree to waive the DotCom Default; and (b) the
Agent, in accordance with Section 8 of the Pledge Agreement, consents to the
Transfer; provided, however, that such waiver and consent shall be null, void
and of no effect on and after February 21, 2001 if (1) the Borrower has not
entered into on or before such date a Second Amended and Restated Pledge
Agreement, in form and substance acceptable to the Agent and substantially
similar to the Pledge Agreement, that amends and restates the Pledge Agreement
and, among other things, correctly identifies all of the authorized, issued and
outstanding Class B common stock of XXX.XXX and (2) the Borrower's outside
counsel has not delivered an opinion letter to the Agent that opines on the
capitalization of XXX.XXX and (3) the Borrower's outside counsel has not
delivered an opinion letter to the Agent that opines on the capitalization of
any other Subsidiary of the Borrower that constitutes a "Significant Subsidiary"
as defined in Section 2 below.
2. Amendment. Effective as of the date hereof, as expressly limited
hereby and subject to the satisfaction of the conditions precedent set forth in
Section 3 below, the Credit Agreement hereby is and shall be amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended to insert
alphabetically therein the following defined term:
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"Significant Subsidiary" means any Subsidiary which would be a
"significant subsidiary" as defined in Rule 1-02 of Regulation S-X under the
Securities Exchange Act of 1934 in that Holdings' direct or indirect investments
in and advances to such Subsidiary exceed 10% of Holdings' Consolidated Assets
as of the end of the most recently completed fiscal year or the net worth of
such Subsidiary exceeds 10% of Holdings' Consolidated Net Worth as of the end of
the most recently completed fiscal year or the income of such Subsidiary from
continuing operations before income taxes, extraordinary items and cumulative
effect of a change in accounting principle exceeds 10% of such income of
Holdings and its consolidated Subsidiaries for the most recently completed
fiscal year.
(b) Section 7.2 of the Credit Agreement is hereby amended to insert
immediately at the end thereof the following paragraph (K):
"(K) Significant Subsidiary. The Borrower, within [seven] days of any
Subsidiary becoming or otherwise constituting a Significant Subsidiary, shall
cause [outside] counsel to deliver to the Agent an opinion letter that certifies
the number of authorized, issued and outstanding shares of capital stock or
other equity interests of such Subsidiary, and that the Agent, on behalf of the
Lenders, pursuant to the terms of a pledge agreement in form and substance
acceptable to the Agent and substantially similar to the Pledge Agreement,
possesses a perfected security interest in and lien upon the capital stock or
other equity interests of such Subsidiary.
3. Release of the Transferred Shares. In consideration of the foregoing
and subject in all respects to Section 1 hereof, upon the effectiveness of this
Agreement, the Agent for itself and for the Holders of Secured Obligations (i)
releases its Lien on the Transferred Shares and (ii) terminates, releases,
relieves and discharges the Borrower from all of its obligations under the
Pledge Agreement and Security Agreement dated as of November 20, 1997 between
the Borrower and the Agent for its benefit and for the benefit of the Holders of
Secured Obligations (as amended, the "Security Agreement") with respect to the
Transferred Shares.
4. Conditions of Effectiveness. This Agreement shall become effective
and be deemed effective as of the date hereof, if, and only if, (i) the Agent
shall have received executed originals of this Agreement from the Borrower and
the Required Lenders and (ii) each Lender that executes this Agreement and
delivers such executed Agreement to Xxxxxxxx Xxxxxxx, acting on behalf of the
Agent, by facsimile (facsimile number: 312-732-2038) prior to 5:00 p.m. (Chicago
time) December 21, 2000, receives in immediately available funds a fee equal to
0.05% times such Lender's Commitment under the Credit Agreement. Lenders that do
not execute and deliver this Agreement to the Agent on or before 5:00 p.m.
(Chicago time) December 21, 2000 pursuant to the requirements hereof shall not
receive such fee.
5. Representations and Warranties of the Borrower. The Borrower hereby
represents and warrants as follows:
(a) The Credit Agreement as previously executed constitutes the
legal, valid and binding obligation of the Borrower and is enforceable against
the Borrower in accordance with its terms.
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(b) Upon the effectiveness of this Agreement, the Borrower hereby
(i) represents that no Default or Unmatured Default exists under the terms of
the Credit Agreement, (ii) reaffirms all covenants, representations and
warranties made in the Credit Agreement, and (iii) agrees that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Agreement. The execution, delivery and
effectiveness of this Agreement shall not, except as expressly provided herein,
operate as a waiver of any right, power, or remedy of the Lenders or the Agent
under the Credit Agreement or any related document, instrument or agreement. The
Agent and the Lenders expressly reserve all of their rights and remedies,
including the right to institute enforcement actions in consequence of any
existing Defaults or Unmatured Defaults not waived hereunder at any time without
further notice, under the Credit Agreement, all other documents, instruments and
agreement executed in connection therewith, and applicable law.
6. Further Assurances. The Agent for itself and on behalf of the
Holders of Secured Obligation agrees (i) to promptly after the date hereof
deliver to the Borrower a UCC-3 partial release covering the Transferred Shares
and (ii) at any time and from time to time, at the cost and expense of the
Borrower, to execute and deliver all further instruments and documents, and take
all further action, that may be necessary to complete the transactions
contemplated by this Agreement.
7. Effect on the Credit Agreement.
(a) Upon the effectiveness of this Agreement, on and after the date
hereof, each reference in the Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import shall mean and be a reference to such
Credit Agreement, as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and
all other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Agreement
shall neither, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Lenders or the Agent, nor constitute a waiver of
any provision of the Credit Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
8. Costs and Expenses. The Borrower agrees to pay all reasonable
costs, fees and out-of-pocket expenses (including attorneys' fees and expenses
charged to the Agent) incurred by the Agent and the Lenders in connection with
the preparation, arrangement, execution and enforcement of this Agreement.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS (INCLUDING, WITHOUT LIMITATION, SECTION 735 ILCS
105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS)
OF THE STATE OF ILLINOIS.
10. Headings. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
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11. Counterparts. This Agreement may be executed by one or more of the
parties to the Waiver on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A facsimile copy of any signature hereto shall qualify as and shall
constitute the original thereof.
12. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
The remainder of this page is intentionally blank.
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IN WITNESS WHEREOF, this Waiver has been duly executed and delivered as
of the date first written above.
FLORISTS' TRANSWORLD DELIVERY, INC. IOS BRANDS CORPORATION, formerly
known as FTD Corporation
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Vice President, Treasurer Title: Vice President, Treasurer
BANK ONE, NA, HAVING ITS MICHIGAN NATIONAL BANK
PRINCIPAL OFFICE IN CHICAGO,
ILLINOIS, formerly known as
The First National Bank of Chicago,
individually and as Agent
By: /s/ Xxxxxxx X. Xxxxxx
By: /s/ Xxxxxxx Xxxxxxxxx ---------------------
--------------------- Name: Xxxxxxx X. Xxxxxx
Name: Xxxxxxx Xxxxxxxxx Title: Vice President
Title: Assistant Vice President
KEYBANK NATIONAL ASSOCIATION XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Law
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Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Law
Title: Vice President Title: Vice President
FIRSTAR BANK, N.A., formerly known as HUNTINGTON NATIONAL BANK
Mercantile Bank National Association
By: By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Name: Xxxxxxx X. Xxxxxxx
Title: Title: Corporate Banking Officer
