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EXHIBIT 10.2
EXECUTION COPY
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Pledge Agreement"), dated as of
November 20, 1997, 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 of even date herewith (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
pursuant to which the Lenders have agreed, subject to certain conditions
precedent, to make loans and other financial accommodations to the Pledgor from
time to time;
WHEREAS, the Pledgor owns all of the issued and outstanding
capital stock of FTD Holdings, Incorporated and Florists' Transworld
Association of Canada, Limited; and
WHEREAS, the Agent and the Lenders have required, as a
condition to their entering into the Credit Agreement, that the Pledgor execute
and deliver this Pledge Agreement;
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 to the Agent, for
the benefit of the Agent and the Holders of Secured Obligations, and grants 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"):
(a) One hundred percent of the shares of the capital stock of FTD
Holdings, Incorporated and sixty-five percent (65%) of the shares of the
capital stock of Florists'
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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 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 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 and 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,
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then all new, substituted and additional shares, warrants, rights,
options or other securities, issued 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
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,
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;
(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
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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;
(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
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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 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.
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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.
(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.
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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.
(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.
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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.
(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.
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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.
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
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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
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.
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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 Pledge Agreement as of the date set forth above.
FLORISTS' TRANSWORLD DELIVERY, INC.
By:_________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
By:_________________________
Name:
Title:
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ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Pledge Agreement, agrees promptly to note on its books the security
interests granted under such Pledge Agreement, and waives any rights or
requirement at any time hereafter to receive a copy of such 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:________________________
Name:
Title:
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ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Pledge Agreement, agrees promptly to note on its books the security
interests granted under such Pledge Agreement, and waives any rights or
requirement at any time hereafter to receive a copy of such 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.
FLORISTS' TRANSWORLD ASSOCIATION OF
CANADA, LIMITED
By:________________________
Name:
Title:
15
EXHIBIT A
to
PLEDGE AGREEMENT
dated as of November 20, 1997
Pledged Stock Certificates
Percentage of Shares of Common
Issued and Outstanding Stock owned by
Common Stock owned the Pledgor Subject
Name by the Pledgor to Pledge
FTD Holdings, Incorporated 100% 3,000
Florists' Transworld 65% 15
Association of
Canada, Limited
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 _____________________________ 15 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:
