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ITEM 14, 3. - EXHIBITS, (10)(b)
FIFTH ADDENDUM
THIS FIFTH ADDENDUM, made and entered into this 21st day of
November, 1994, by and between PNC BANK, KENTUCKY, INC. (formerly Citizens
Fidelity Bank and Trust Company) ("PNC" or "Bank"), a banking corporation
organized under the laws of the Commonwealth of Kentucky, 000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; and FLORAFAX INTERNATIONAL, INC.
("Florafax"), a corporation organized under the laws of the State of Delaware,
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000, as a Fifth Addendum to that
certain Agreement by and between PNC and Florafax made and entered into on the
3rd day of December, 1992 ("Agreement"), that certain Addendum by and between
PNC and Florafax made and entered into on the 15th day of January, 1993
("Addendum"), that certain Second Addendum by and between PNC and Florafax made
and entered into on the 3rd day of July, 1993 ("Second Addendum"), that certain
Third Addendum by and between PNC and Florafax made and entered into on the
15th day of November, 1993 ("Third Addendum"), and that certain Fourth Addendum
by and between PNC and Florafax made and entered into on the 15th day of
February, 1994 ("Fourth Addendum") (collectively, the Agreement, the Addendum,
the Second Addendum, the Third Addendum, the Fourth Addendum and the Fifth
Addendum constitute the "Agreements").
In consideration of PNC agreeing to extend the termination
date of the ISO Agreement and the Merchant Agreement with Florafax and
extending the period in which PNC provides an extension of credit to Florafax
to cover overdrafts as provided in the Agreement, Addendum, Second Addendum,
Third Addendum and Fourth Addendum, Florafax and PNC agree as follows:
1. Florafax reaffirms each of its obligations, duties,
liabilities and responsibilities to PNC under the terms and provisions of the
ISO Agreement, the Merchant Agreement, the Agreement, the Addendum, the Second
Addendum, the Third Addendum and the Fourth Addendum. Florafax acknowledges
and agrees that PNC is not in default under any of the terms and provisions of
the Merchant Agreement, the ISO Agreement, the Agreement, the Addendum, the
Second Addendum, the Third Addendum or the Fourth Addendum.
2. Florafax and PNC agree that the ISO Agreement,
Merchant Agreement, Agreement, Addendum, Second Addendum, Third Addendum and
Fourth Addendum are amended and modified by the terms hereof to terminate on
September 30, 1995, unless the termination date is further modified by the
terms and provisions herein, and termination of the Agreements on said date
shall proceed in accordance with the provisions for winding down the agreement
between the parties as set forth in the ISO Agreement and in the Merchant
Agreement.
3. The current extension of credit provided to Florafax
by PNC, in an amount up to the maximum of One Million Two Hundred Thousand
Dollars ($1,200,000), will be continued until November 15,
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1994, and beginning on November 15, 1994, the amount of the extension of credit
provided and available to Florafax will be reduced by the amount set forth
below until such time as the maximum amount of the extension of credit equals
the Five Hundred Thousand Dollars ($500,000) now maintained in the Collateral
Fund -
November 15, 1994, through March 15, 1995 - $50,000
reduction per month
April 15, 1995, through September 15, 1995 - $75,000
reduction per month
The principal amount outstanding on the extension of credit shall continue to
bear interest at the current floating rate of interest of one and one-half
percent over the Prime Rate, such rate being that rate of interest most
recently announced by PNC Bank, Kentucky, Inc., at its main office in
Louisville, Kentucky as its "Prime Rate," it being understood that such rate is
not necessarily the lowest rate offered by PNC Bank, Kentucky, Inc. to its
commercial borrowers.
4. The reductions in the extension of credit set forth
above in paragraph 3 shall apply and be made regardless of whether Florafax
changes merchant processors during the term of the Agreements.
5. The merchant processing fee charged to Florafax by
PNC shall be increased by five basis points effective November 1, 1994, and
Florafax shall pay the increased fee, including all processing charges passed
through to PNC by National Bancard Corporation ("NaBANCO") and such other
applicable charges under the Agreements.
6. Florafax shall be responsible for all costs and
expenses incurred by PNC or Florafax to ensure Florafax's compliance with
applicable VISA and MasterCard ISO/MSP requirements. Florafax shall pay all
such costs and expenses of PNC as billed by PNC.
7. Florafax agrees that for voice authorizations
beginning on the date set forth herein, it shall pay the increased amounts
which follow:
A. Florafax shall pay to PNC One Thousand Five
Hundred Dollars ($1,500) per month for voice authorizations beginning
with the November, 1994 invoice from PNC.
B. Florafax shall pay to PNC Four Thousand
Dollars ($4,000) per month to reimburse PNC for past due voice
authorizations, totalling as of October 31, 1994, $34,476 and
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shall pay such amount until all xxxxxxxx have been paid in full in
accordance with the terms and provisions of the Agreements.
C. In the event PNC negotiates the outsourcing
of voice authorizations processing for Florafax, Florafax shall
convert all Florafax merchants to the selected processor within sixty
(60) days of notification from PNC. Florafax further agrees that it
shall pay all costs necessary to convert to the selected processor and
will communicate any changes required to each Florafax merchant.
Florafax understands that the costs of voice authorizations from the
selected processor will be passed through to Florafax by PNC and
Florafax shall pay all such costs as billed.
8. Florafax shall pay to PNC as conversion fees the
following:
A. Florafax shall pay to PNC Two Thousand
Dollars ($2,000) per month beginning November 1, 1994, to reimburse
PNC for the conversion fee paid by PNC to NaBANCO and the payment
required hereunder shall continue until such time as the conversion
fee paid by PNC to NaBANCO has been reimbursed in full.
B. Florafax shall pay any deconversion fees
charged to PNC by NaBANCO should Florafax find another credit card
processor. Florafax shall pay all deconversion fees as billed by PNC.
9. A default on or a breach by Florafax of any covenant,
representation or obligation under this Fifth Addendum or any of the
Agreements, shall be considered a default and breach under the Agreements,
triggering all action which PNC may take under such documents, including
terminating this Fifth Addendum at PNC's discretion.
10. PNC and Florafax agree that neither the terms and
provisions of this Fifth Addendum nor those in the Fourth Addendum, the Third
Addendum, the Second Addendum, the Addendum or the Agreement shall in any way
negate the obligation, duties and responsibilities of any party to the Merchant
Agreement and ISO Agreement, except that the Merchant Agreement and ISO
Agreement shall terminate on September 1, 1995, or as stated herein, and such
termination shall proceed in accordance with the provisions for winding down of
the agreement between the parties as set forth in the ISO Agreement and in the
Merchant Agreement.
11. Florafax agrees that the funds deposited and held in
the Collateral Fund are being provided to and held by PNC as
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collateral for the extension of credit by PNC, and PNC may exercise rights of
recovery against such fund in the event of a default by Florafax under the ISO
Agreement, the Merchant Agreement, the Agreement, the Addendum, the Second
Addendum, the Third Addendum, the Fourth Addendum, this Fifth Addendum, the
Credit Card Processing Agreement by and between Florafax and SCI Funeral
Services, Inc., made and entered into effective the 8th day of March, 1993, or
the Agreement by and between Florafax, PNC, SCI Funeral Services, Inc. and
Service Corporation International, entered into to be effective March 8, 1993.
12. During the term of the Agreements as set forth herein
if the extension of credit terminates by its own terms or is terminated by PNC
due to a breach or violation of the Agreements by Florafax, PNC shall be
entitled to retain and hold up to Two Hundred Twenty-five Thousand Dollars
($225,000) of the amounts on deposit in the Collateral Fund as security funds
for chargebacks and other liabilities pursuant to the terms and provisions of
the ISO Agreement.
13. The amount of security funds required pursuant to
Section 9(1) of the ISO Agreement under the terms and conditions stated therein
shall be Two Hundred Twenty-five Thousand Dollars ($225,000) at the time the
ISO Agreement is terminated and Florafax shall deposit, at that time the
additional amount needed to bring the total amount of security funds to be held
by PNC, including the Collateral Fund, to Two Hundred Twenty-five Thousand
Dollars ($225,000).
14. Notwithstanding the provisions of paragraphs 12 and
13 above, Florafax shall maintain in the Collateral Fund during the terms of
the Agreements not less than Five Hundred Thousand Dollars ($500,000) and on
termination of the Agreements shall maintain in the Collateral Fund to be used
as security funds under the ISO Agreement Two Hundred Twenty-five Thousand
Dollars ($225,000).
15. The parties agree that the terms and provisions of
the ISO Agreement, Merchant Agreement, Agreement, Addendum, Second Addendum,
Third Addendum and Fourth Addendum not modified by the provisions of the Fifth
Addendum shall remain in full force and effect for the term stated herein.
16. Terms not defined in this Fifth Addendum shall have
the meanings assigned to them in the Agreement, the Addendum, the Second
Addendum, the Third Addendum and the Fourth Addendum.
17. This Fifth Addendum shall be governed by and
construed in accordance with the laws of the Commonwealth of Kentucky.
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IN WITNESS WHEREOF, the parties by their duly authorized
officers, have executed and delivered this Fifth Addendum the day and year
first above written.
PNC BANK, KENTUCKY, INC.
By: /s/ ?
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Authorized Officer
Executive Vice President
FLORAFAX INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Chairman
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