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EXHIBIT 10.4
AMENDED AND RESTATED
PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (the "Pledge
Agreement"), dated as of May 10, 1999, is executed by and between Florists'
Transworld Delivery, Inc., a Michigan corporation (the "Pledgor"), and The First
National Bank of Chicago, as contractual representative (the "Agent") for itself
and for the "Holders of Secured Obligations" under the Credit Agreement defined
below. Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings ascribed to such terms in the "Credit Agreement" (as
defined below).
WITNESSETH:
WHEREAS, the Pledgor, FTD Corporation, a Delaware corporation,
the Agent and certain financial institutions (the "Lenders") have entered into a
certain Credit Agreement dated as of November 20, 1997 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
pursuant to which the Lenders agreed, subject to certain conditions precedent,
to make loans and other financial accommodations to the Pledgor from time to
time;
WHEREAS, as a condition to the Agent and the Lenders entering
into the Credit Agreement, the Pledgor executed and delivered a Pledge
Agreement, dated as of November 20, 1997 (the "Existing Pledge Agreement"),
pursuant to which the Pledgor pledged certain of its interests in FTD Holdings,
Incorporated and Florists' Transworld Association of Canada, Limited to the
Agent; and
WHEREAS, the Pledgor has requested that the Existing Pledge
Agreement be amended and restated to include Pledgor's interests in xxx.xxx
inc., a Delaware corporation, and the Agent and the Lenders have agreed to such
request;
NOW, THEREFORE, for and in consideration of the foregoing and
of any financial accommodations or extensions of credit (including, without
limitation, any loan or advance by renewal, refinancing or extension of the
agreements described hereinabove or otherwise) heretofore, now or hereafter made
to or for the benefit of the Pledgor pursuant to the Credit Agreement or any
other agreement, instrument or document executed pursuant to or in connection
therewith, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor and the Agent hereby
agree as follows:
1. Pledge. The Pledgor hereby pledges and reaffirms its
previous pledge to the Agent, for the benefit of the Agent and the Holders of
Secured Obligations, and grants and reaffirms its previous grant to the Agent
for the benefit of the Agent and the Holders of Secured Obligations, a security
interest in, the following (collectively, the "Pledged Collateral"):
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(a) One hundred percent (100%) of the shares of the capital
stock of FTD Holdings, Incorporated, one hundred percent (100%) of the
shares of Class B common stock of xxx.xxx inc. and sixty-five percent
(65%) of the shares of the capital stock of Florists' Transworld
Association of Canada, Limited, now or at any time or times hereafter
owned by the Pledgor, and the certificates representing the shares of
such capital stock (such now-owned shares being identified on Exhibit A
attached hereto and made a part hereof), all options and warrants for
the purchase of shares of the stock of FTD Holdings, Incorporated and
xxx.xxx inc. and such rights for up to 65% of the capital stock of
Florists' Transworld Association of Canada, Limited, now or hereafter
held in the name of the Pledgor (all of said capital stock, options and
warrants and all capital stock held in the name of the Pledgor as a
result of the exercise of such options or warrants being hereinafter
collectively referred to as the "Pledged Stock"), herewith delivered to
the Agent accompanied by stock powers in the form of Exhibit B attached
hereto and made a part hereof (the "Powers") duly executed in blank,
and all dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of, or in
exchange for, any or all of the Pledged Stock;
(b) All additional shares of stock of FTD Holdings,
Incorporated and xxx.xxx inc. and 65% of all additional shares of stock
of Florists' Transworld Association of Canada, Limited, from time to
time acquired by the Pledgor in any manner, and the certificates
representing such additional shares (any such additional shares shall
constitute part of the Pledged Stock and the Agent is irrevocably
authorized to amend Exhibit A from time to time to reflect such
additional shares), and all options, warrants, dividends, cash,
instruments and other rights and options from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of such shares;
(c) The property and interests in property described in
Section 3 below; and
(d) All proceeds of the foregoing.
2. Security for Liabilities. The Pledged Collateral secures
the prompt payment, performance and observance of (i) the Pledgor's obligations
and liabilities under the Credit Agreement and the Loan Documents and (ii) the
Pledgor's obligations and liabilities under this Pledge Agreement and each
agreement, document or instrument executed pursuant to or in connection with
this Pledge Agreement (all such obligations and liabilities of the Pledgor now
or hereafter existing being hereinafter referred to as the "Liabilities").
3. Pledged Collateral Adjustments. If, during the term of this
Pledge Agreement:
(a) Any stock dividend, reclassification, readjustment or
other change is declared or made in the capital structure of FTD
Holdings, Incorporated, xxx.xxx
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inc. or Florists' Transworld Association of Canada, Limited, or any
option included within the Pledged Collateral is exercised, or both, or
(b) Any subscription warrants or any other rights or options
shall be issued in connection with the Pledged Collateral,
then all new, substituted and additional shares, warrants, rights, options or
other securities, issued to the Pledgor by reason of any of the foregoing (or in
the case of Florists' Transworld Association of Canada, Limited, 65% of such
new, substituted and additional share or other securities, warrants, rights and
options for up to 65% of the capital stock of Florists' Transworld Association
of Canada, Limited), shall be immediately delivered to and held by the Agent
under the terms of this Pledge Agreement and shall constitute Pledged Collateral
hereunder; provided, however, that nothing contained in this Section 3 shall be
deemed to permit any stock dividend, issuance of additional stock, warrants,
rights or options, reclassification, readjustment or other change in the capital
structure of FTD Holdings, Incorporated, xxx.xxx inc. and Florists' Transworld
Association of Canada, Limited, which is prohibited by the Credit Agreement.
4. Subsequent Changes Affecting Pledged Collateral. The
Pledgor represents and warrants that it has made its own arrangements for
keeping itself informed of changes or potential changes affecting the Pledged
Collateral (including, but not limited to, rights to convert, rights to
subscribe, payment of dividends, reorganization or other exchanges, tender
offers and voting rights), and the Pledgor agrees that neither the Agent nor any
of the Holders of Secured Obligations shall have any obligation to inform the
Pledgor of any such changes or potential changes or to take any action or omit
to take any action with respect thereto. The Agent may, after the occurrence of
a Default, without notice and at its option, transfer or register the Pledged
Collateral or any part thereof into its or its nominee's name with or without
any indication that such Pledged Collateral is subject to the security interest
hereunder. In addition, the Agent may at any time exchange certificates or
instruments representing or evidencing Pledged Shares for certificates or
instruments of smaller or larger denominations.
5. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) The Pledgor is the sole legal and beneficial owner of 100%
of the issued and outstanding common stock of FTD Holdings,
Incorporated and Florists' Transworld Association of Canada, Limited,
and of 100% of the issued and outstanding Class B common stock of
xxx.xxx inc., free and clear of any Lien;
(b) The Pledgor has full corporate power and authority to
enter into this Pledge Agreement;
(c) There are no restrictions upon the voting rights
associated with, or upon the transfer of, any of the Pledged
Collateral;
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(d) The Pledgor has the right to vote, pledge and grant a
security interest in or otherwise transfer such Pledged Collateral free
of any Liens;
(e) No authorization, approval, or other action by, and no
notice to or filing with, any governmental authority or regulatory body
which has not been obtained or taken is required either (i) for the
pledge of the Pledged Collateral pursuant to this Pledge Agreement or
for the execution, delivery or performance of this Pledge Agreement by
the Pledgor or (ii) for the exercise by the Agent of the voting or
other rights provided for in this Pledge Agreement or the remedies in
respect of the Pledged Collateral pursuant to this Pledge Agreement
(except as may be required in connection with such disposition by laws
affecting the offering and sale of securities generally);
(f) The pledge of the Pledged Collateral pursuant to this
Pledge Agreement creates a valid and perfected first priority security
interest in the Pledged Collateral, in favor of the Agent for the
benefit of the Agent and the Holders of Secured Obligations, securing
the payment and performance of the Liabilities; and
(g) The Powers are duly executed and give the Agent the
authority they purport to confer.
6. Voting Rights. During the term of this Pledge Agreement,
and except as provided in this Section 6 below, the Pledgor shall have the right
to vote the Pledged Stock on all corporate questions in a manner not
inconsistent with the terms of this Pledge Agreement, the Credit Agreement and
any other Loan Document. After the occurrence and during the continuance of a
Default, the Agent or the Agent's nominee may, at the Agent's or such nominee's
option and following written notice from the Agent to the Pledgor, exercise all
voting powers pertaining to the Pledged Collateral, including the right to take
action by shareholder consent. Such authorization shall constitute an
irrevocable voting proxy from the Pledgor to the Agent or, at the Agent's
option, to the Agent's nominee.
7. Dividends and Other Distributions. (a) So long as no
Default has occurred and is continuing under the Credit Agreement:
(i) The Pledgor shall be entitled to receive and retain any
and all dividends and interest paid in respect of the Pledged
Collateral, provided, however, that any and all
(A) dividends and interest paid or payable other than
in cash with respect to, and instruments and other property
received, receivable or otherwise distributed with respect to,
or in exchange for, any of the Pledged Collateral;
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(B) dividends and other distributions paid or payable
in cash with respect to any of the Pledged Collateral on
account of a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or
paid-in surplus; and
(C) cash paid, payable or otherwise distributed with
respect to principal of, or in redemption of, or in exchange
for, any of the Pledged Collateral;
shall be Pledged Collateral, and shall be forthwith delivered to the
Agent to hold, for the benefit of the Agent and the Holders of Secured
Obligations, as Pledged Collateral and shall, if received by the
Pledgor, be received in trust for the Agent, for the benefit of the
Agent and the Holders of Secured Obligations, be segregated from the
other property or funds of the Pledgor, and be delivered immediately to
the Agent as Pledged Collateral in the same form as so received (with
any necessary endorsement); and
(ii) The Agent shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to receive the dividends or interest payments
which it is authorized to receive and retain pursuant to clause (i)
above.
(b) After the occurrence and during the continuance of a Default:
(i) All rights of the Pledgor to receive the dividends and
interest payments which it would otherwise be authorized to receive and
retain pursuant to Section 7(a)(i) hereof shall thereupon become vested
in the Agent, for the benefit of the Agent and the Holders of Secured
Obligations, which shall thereupon have the sole right to receive and
hold as Pledged Collateral such dividends and interest payments;
(ii) All dividends and interest payments which are received by
the Pledgor contrary to the provisions of clause (i) of this Section
7(b) shall be received in trust for the Agent, for the benefit of the
Agent and the Holders of Secured Obligations, shall be segregated from
other funds of the Pledgor and shall be paid over immediately to the
Agent as Pledged Collateral in the same form as so received (with any
necessary endorsements).
8. Transfers and Other Liens. The Pledgor agrees that it will
not (i) sell or otherwise dispose of, or grant any option with respect to, any
of the Pledged Collateral without the prior written consent of the Agent, or
(ii) create or permit to exist any Lien upon or with respect to any of the
Pledged Collateral, except for the security interest under this Pledge Agreement
and Liens permitted by the Credit Agreement.
9. Remedies. (a) The Agent shall have, in addition to any
other rights given under this Pledge Agreement or by law, all of the rights and
remedies with respect to the Pledged Collateral of a secured party under the
Uniform Commercial Code as in
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effect in the State of Illinois. After the occurrence and during the continuance
of a Default and following written notice to the Pledgor, the Agent (personally
or through an agent) is hereby authorized and empowered to transfer and register
in its name or in the name of its nominee the whole or any part of the Pledged
Collateral, to exercise all voting rights with respect thereto and to otherwise
act with respect to the Pledged Collateral as though the Agent were the outright
owner thereof, the Pledgor hereby irrevocably constituting and appointing the
Agent as the proxy and attorney-in-fact of the Pledgor, with full power of
substitution to do so, such proxy becoming effective upon the occurrence and
during the continuance of a Default and following written notice thereof;
provided, however, that the Agent shall have no duty to exercise any such right
or to preserve the same and shall not be liable for any failure to do so or for
any delay in doing so. In addition, after the occurrence and during the
continuance of a Default, the Agent shall have such powers of sale and other
powers as may be conferred by applicable law. With respect to the Pledged
Collateral or any part thereof which shall then be in or shall thereafter come
into the possession or custody of the Agent or which the Agent shall otherwise
have the ability to transfer under applicable law, the Agent may, in its sole
discretion, without notice except as specified below, after the occurrence and
during the continuance of a Default, sell or cause the same to be sold, in
compliance with applicable law, at any exchange, broker's board or at public or
private sale, in one or more sales or lots, at such price as the Agent
reasonably deems best, for cash or on credit or for future delivery, without
assumption of any credit risk, and the purchaser of any or all of the Pledged
Collateral so sold shall thereafter own the same, absolutely free from any
claim, encumbrance or right of any kind whatsoever. The Agent and each of the
Holders of Secured Obligations may, in its own name, or in the name of a
designee or nominee, buy the Pledged Collateral at any public sale and, if
permitted by applicable law, buy the Pledged Collateral at any private sale. The
Pledgor will pay to the Agent all reasonable expenses (including, without
limitation, court costs and reasonable attorneys' and paralegals' fees and
expenses) of, or incidental to, the enforcement of any of the provisions hereof.
The Agent agrees to distribute any proceeds of the sale of the Pledged
Collateral in accordance with the Credit Agreement and the Pledgor shall remain
liable for any deficiency following the sale of the Pledged Collateral.
(b) Unless any of the Pledged Collateral threatens to decline
speedily in value or is or becomes of a type sold on a recognized market, the
Agent will give the Pledgor reasonable notice of the time and place of any
public sale thereof, or of the time after which any private sale or other
intended disposition is to be made. Any sale of the Pledged Collateral conducted
in conformity with reasonable commercial practices of banks, commercial finance
companies, insurance companies or other financial institutions disposing of
property similar to the Pledged Collateral shall be deemed to be commercially
reasonable. Notwithstanding any provision to the contrary contained herein, the
Pledgor agrees that any requirements of reasonable notice shall be met if such
notice is received by the Pledgor as provided in Section 25 below at least ten
(10) Business Days before the time of the sale or disposition; provided,
however, that Agent may give any shorter notice that is commercially reasonable
under the circumstances. Any other requirement of notice, demand or
advertisement for sale is waived, to the extent permitted by law.
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(c) In view of the fact that federal and state securities laws
may impose certain restrictions on the method by which a sale of the Pledged
Collateral may be effected after a Default, the Pledgor agrees that after the
occurrence and during the continuance of a Default, the Agent may, from time to
time, attempt to sell all or any part of the Pledged Collateral by means of a
private placement restricting the bidders and prospective purchasers to those
who are qualified and will represent and agree that they are purchasing for
investment only and not for distribution. In so doing, the Agent may solicit
offers to buy the Pledged Collateral, or any part of it, from a limited number
of investors deemed by the Agent, in its reasonable judgment, to be financially
responsible parties who might be interested in purchasing the Pledged
Collateral.
10. Security Interest Absolute. All rights of the Agent and
security interests hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(i) Any lack of validity or enforceability of the Credit
Agreement or any other agreement or instrument relating thereto;
(ii) Any change in the time, manner or place of payment of, or
in any other term of, all or any part of the Liabilities, or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement;
(iii) Any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any part of the Liabilities; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor in respect of the
Liabilities or of this Pledge Agreement.
11. Agent Appointed Attorney-in-Fact. The Pledgor hereby
appoints the Agent its attorney-in-fact, with full authority, in the name of the
Pledgor or otherwise, after the occurrence and during the continuance of a
Default, from time to time in the Agent's sole discretion, to take any action
and to execute any instrument which the Agent reasonably deems necessary or
advisable to accomplish the purposes of this Pledge Agreement, including,
without limitation, to receive, endorse and collect all instruments made payable
to the Pledgor when such Default shall be a Default representing any dividend,
interest payment or other distribution in respect of the Pledged Collateral or
any part thereof and to give full discharge for the same and to arrange for the
transfer of all or any part of the Pledged Collateral on the books of the
Borrower to the name of the Agent or the Agent's nominee.
12. Waivers. (i) The Pledgor waives presentment and demand for
payment of any of the Liabilities, protest and notice of dishonor or Default
with respect to any of the Liabilities and all other notices to which the
Pledgor might otherwise be entitled except as otherwise expressly provided
herein or in the other Loan Documents.
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(ii) The Pledgor understands and agrees that its obligations
and liabilities under this Pledge Agreement shall remain in full force and
effect, notwithstanding foreclosure of any real property securing all or any
part of the Secured Obligations by trustee sale or any other reason impairing
the right of the Pledgor, the Agent or any of the Holders of Secured Obligations
to proceed against the Pledgor, any other guarantor or the Pledgor's or such
guarantor's property. The Pledgor agrees that all of its obligations under this
Pledge Agreement shall remain in full force and effect without defense, offset
or counterclaim of any kind, notwithstanding that the Pledgor's rights against
the Pledgor may be impaired, destroyed or otherwise affected by reason of any
action or inaction on the part of the Agent or any Holder of Secured
Obligations.
13. Term. This Pledge Agreement shall remain in full force and
effect until the Liabilities (other than Liabilities consisting of contingent
obligations) have been fully and indefeasibly paid and the Credit Agreement has
terminated pursuant to its terms. Upon the termination of this Pledge Agreement
as provided above (other than as a result of the sale of the Pledged
Collateral), the Agent will release the security interest created hereunder and,
if it then has possession of the Pledged Stock, will deliver the Pledged Stock
and the Powers to the Pledgor and take such other actions as reasonably
requested by the Pledgor in connection with the release of such security
interest.
14. Definitions. The singular shall include the plural and
vice versa and any gender shall include any other gender as the context may
require.
15. Successors and Assigns. This Pledge Agreement shall be
binding upon and inure to the benefit of the Pledgor, the Agent, for the benefit
of itself and the Holders of Secured Obligations, and their respective
successors and assigns. The Pledgor's successors and assigns shall include,
without limitation, a receiver, trustee or debtor-in-possession of or for the
Pledgor.
16. GOVERNING LAW. THIS PLEDGE AGREEMENT HAS BEEN EXECUTED AND
DELIVERED BY THE PARTIES HERETO IN CHICAGO, ILLINOIS. ANY DISPUTE BETWEEN THE
AGENT AND THE PLEDGOR ARISING OUT OF OR RELATED TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS PLEDGE AGREEMENT OR ANY OTHER LOAN DOCUMENT
TO WHICH THE PLEDGOR IS A PARTY, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY,
OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS, AND NOT
THE CONFLICTS OF LAW PROVISIONS, OF THE STATE OF ILLINOIS.
17. Consent to Jurisdiction; Counterclaims; Forum Non
Conveniens. (a) Exclusive Jurisdiction. Except as provided in subsection (b) of
this Section 17, the Agent, on behalf of itself and the Holders of Secured
Obligations, and the Pledgor agree that all disputes between them arising out of
or related to the relationship established between them in connection with this
Pledge Agreement or any other Loan Document to which the Pledgor is a party,
whether arising in contract, tort, equity, or otherwise, shall be resolved only
by state or federal courts located in Chicago, Illinois, but the parties
acknowledge that any appeals from those courts may have to be heard by a court
located outside of Chicago, Illinois.
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(b) Other Jurisdictions. The Agent shall have the right to
proceed against the Pledgor or its real or personal property in a court in any
location to enable the Agent to obtain personal jurisdiction over the Pledgor,
to realize on the Pledged Collateral or any other security for the Liabilities
or to enforce a judgment or other court order entered in favor of the Agent. The
Pledgor shall not assert any permissive counterclaims in any proceeding brought
by the Agent arising out of or relating to this Pledge Agreement.
(c) Venue; Forum Non Conveniens. Each of the Pledgor and the
Agent waives any objection that it may have (including, without limitation, any
objection to the laying of venue or based on forum non conveniens) to the
location of the court in which any proceeding is commenced in accordance with
this Section 17.
18. Service of Process. The Pledgor waives personal service of
any process upon it and, consents to service by United States Mail in connection
with any dispute between the Pledgor and the Agent arising out of or related to
the relationship established between them in connection with this Pledge
Agreement or any other Loan Document to which the Pledgor is a party.
19. WAIVER OF JURY TRIAL. EACH OF THE PLEDGOR AND THE AGENT
WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE, BETWEEN THE AGENT AND THE PLEDGOR ARISING OUT OF OR RELATED
TO THE TRANSACTIONS CONTEMPLATED BY THIS PLEDGE AGREEMENT, ANY LOAN DOCUMENT TO
WHICH THE PLEDGOR IS A PARTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION THEREWITH. EITHER THE PLEDGOR OR THE AGENT
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS PLEDGE AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
20. Waiver of Bond. The Pledgor waives the posting of any bond
otherwise required of the Agent in connection with any judicial process or
proceeding to realize on the Collateral or any other security for the
Liabilities.
21. Advice of Counsel. The Pledgor represents and warrants to
the Agent and the Holders of Secured Obligations that it has consulted with its
legal counsel regarding all waivers under this Pledge Agreement, including
without limitation those under Section 12 and Sections 16 through 20 hereof,
that it believes that it fully understands all rights that it is waiving and the
effect of such waivers, that it assumes the risk of any misunderstanding that it
may have regarding any of the foregoing, and that it intends that such waivers
shall be a material inducement to the Agent and the Holders of Secured
Obligations to extend the indebtedness secured hereby.
22. Severability. Whenever possible, each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but, if any provision of this Pledge Agreement shall
be held to be prohibited or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Pledge Agreement.
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23. Further Assurances. The Pledgor agrees that it will
cooperate with the Agent and will execute and deliver, or cause to be executed
and delivered, all such other stock powers, proxies, instruments and documents,
and will take all such other actions, including, without limitation, the
execution and filing of financing statements, as the Agent may reasonably
request from time to time in order to carry out the provisions and purposes of
this Pledge Agreement.
24. The Agent's Duty of Care. The Agent shall not be liable
for any acts, omissions, errors of judgment or mistakes of fact or law
including, without limitation, acts, omissions, errors or mistakes with respect
to the Pledged Collateral, except for those arising out of or in connection with
the Agent's (i) gross negligence or willful misconduct, or (ii) failure to use
reasonable care with respect to the safe custody of the Pledged Collateral in
the Agent's possession. Without limiting the generality of the foregoing, the
Agent shall be under no obligation to take any steps necessary to preserve
rights in the Pledged Collateral against any other parties but may do so at its
option. All reasonable expenses incurred in connection therewith shall be for
the sole account of the Pledgor, and shall constitute part of the Liabilities
secured hereby.
25. Notices. All notices and other communications required or
desired to be served, given or delivered hereunder shall be made in writing or
by a telecommunications device capable of creating a written record and shall be
addressed to the party to be notified as follows:
if to the Pledgor, at
Florists' Transworld Delivery, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000-0000
Attention: General Counsel
Telecopy No.: (000) 000-0000
if to the Agent, at
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Agency Division, Syndications, Placement Department
Telecopy No.: (000) 000-0000
with a copy to,
Xxxxxx Xxxxx
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
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Telecopy No.: (000) 000-0000
or, as to each party, at such other address as designated by such party in a
written notice to the other party. All such notices and communications shall be
deemed to be validly served, given or delivered (i) three (3) days following
deposit in the United States mails, with proper postage prepaid; (ii) upon
delivery thereof if delivered by hand to the party to be notified; (iii) upon
delivery thereof to a reputable overnight courier service, with delivery charges
prepaid; or (iv) upon transmission thereof with confirmation of successful
transmission from the sending telecommunications device, if sent by
telecommunications device.
26. Amendments, Waivers and Consents. No amendment or waiver
of any provision of this Pledge Agreement nor consent to any departure by the
Pledgor herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Agent pursuant to the terms of the Credit Agreement,
and then such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
27. Section Headings. The section headings herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
28. Execution in Counterparts. This Pledge Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which shall together constitute one and the same agreement.
29. Merger. This Pledge Agreement represents the final
agreement of the Pledgor with respect to the matters contained herein and may
not be contradicted by evidence of prior or contemporaneous agreements, or
subsequent oral agreements, between the Pledgor and the Agent or any Holder of
Secured Obligations.
30. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Pledge Agreement.
In the event an ambiguity or question of intent or interpretation arises, this
Pledge 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 Pledge Agreement.
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IN WITNESS WHEREOF, the Pledgor and the Agent have executed
this Amended and Restated Pledge Agreement as of the date set forth above.
FLORISTS' TRANSWORLD DELIVERY, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Chief Financial Officer
THE FIRST NATIONAL BANK OF CHICAGO, as Agent
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Amended and Restated Pledge Agreement, agrees promptly to note on its
books the security interests granted under such Amended and Restated Pledge
Agreement, and waives any rights or requirement at any time hereafter to receive
a copy of such Amended and Restated Pledge Agreement in connection with the
registration of any Pledged Collateral in the name of the Agent or its nominee
or the exercise of voting rights by the Agent or its nominee.
FTD HOLDINGS, INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
14
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Amended and Restated Pledge Agreement, agrees promptly to note on its
books the security interests granted under such Amended and Restated Pledge
Agreement, and waives any rights or requirement at any time hereafter to receive
a copy of such Amended and Restated Pledge Agreement in connection with the
registration of any Pledged Collateral in the name of the Agent or its nominee
or the exercise of voting rights by the Agent or its nominee.
XXX.XXX INC.
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Name: Xxxxx X. Xxxx
Title: V.P., CFO and Secretary
15
EXHIBIT A
to
AMENDED AND RESTATED
PLEDGE AGREEMENT
dated as of May 10, 1999
Pledged Stock Certificates
Name
FTD Holdings, Incorporated 100% 3,000
Florists' Transworld
Association of
Canada, Limited
xxx.xxx inc. 65% 15
(Class B Common Stock) 100%
16
EXHIBIT B
to
PLEDGE AGREEMENT
dated as of November 20, 1997
Form of Stock Power
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign
and transfer to Shares of Common Stock of
[ ], a corporation represented by Certificate No.
(the "Stock"), standing in the name of the undersigned on the books of said
corporation and does hereby irrevocably constitute and appoint
as the undersigned's true and lawful attorney, for
it and in its name and stead, to sell, assign and transfer all or any of the
Stock, and for that purpose to make and execute all necessary acts of assignment
and transfer thereof; and to substitute one or more persons with like full
power, hereby ratifying and confirming all that said attorney or substitute or
substitutes shall lawfully do by virtue hereof.
Dated:
----------------
FLORISTS' TRANSWORLD DELIVERY, INC.
By:
---------------------------------------
Name:
Title:
17
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign
and transfer to 9.75 Shares of Common Stock of
Florists' Transworld Association of Canada, Limited, a corporation
represented by Certificate No. 1 (the "Stock"), standing in the name of the
undersigned on the books of said corporation and does hereby irrevocably
constitute and appoint as the undersigned's true and
lawful attorney, for it and in its name and stead, to sell, assign and transfer
all or any of the Stock, and for that purpose to make and execute all necessary
acts of assignment and transfer thereof; and to substitute one or more persons
with like full power, hereby ratifying and confirming all that said attorney or
substitute or substitutes shall lawfully do by virtue hereof.
Dated:
---------------------
FLORISTS' TRANSWORLD DELIVERY, INC.
By:
-------------------------------------
Name:
Title:
18
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign
and transfer to 1 Share of Common Stock of FTD
Holdings, Incorporated, a Delaware corporation represented by Certificate No. 1
(the "Stock"), standing in the name of the undersigned on the books of said
corporation and does hereby irrevocably constitute and appoint
as the undersigned's true and lawful attorney, for it
and in its name and stead, to sell, assign and transfer all or any of the Stock,
and for that purpose to make and execute all necessary acts of assignment and
transfer thereof; and to substitute one or more persons with like full power,
hereby ratifying and confirming all that said attorney or substitute or
substitutes shall lawfully do by virtue hereof.
Dated:
-------------------------
FLORISTS' TRANSWORLD DELIVERY, INC.
By:
------------------------------------
Name:
Title:
19
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign
and transfer to 2,999 Shares of Common Stock of
FTD Holdings, Incorporated, a Delaware corporation represented by Certificate
No. 2 (the "Stock"), standing in the name of the undersigned on the books of
said corporation and does hereby irrevocably constitute and appoint
as the undersigned's true and lawful attorney, for it
and in its name and stead, to sell, assign and transfer all or any of the Stock,
and for that purpose to make and execute all necessary acts of assignment and
transfer thereof; and to substitute one or more persons with like full power,
hereby ratifying and confirming all that said attorney or substitute or
substitutes shall lawfully do by virtue hereof.
Dated:
-----------------------
FLORISTS' TRANSWORLD DELIVERY, INC.
By:
-------------------------------------
Name:
Title:
20
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign
and transfer to Shares of Class B Common
Stock of xxx.xxx inc., a Delaware corporation represented by Certificate No.
the "Stock"), standing in the name of the undersigned on the books of said
corporation and does hereby irrevocably constitute and appoint
as the undersigned's true and lawful attorney, for it
and in its name and stead, to sell, assign and transfer all or any of the Stock,
and for that purpose to make and execute all necessary acts of assignment and
transfer thereof; and to substitute one or more persons with like full power,
hereby ratifying and confirming all that said attorney or substitute or
substitutes shall lawfully do by virtue hereof.
Dated:
----------------------
FLORISTS' TRANSWORLD DELIVERY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
