1
Exhibit 10.D
SECURITY AGREEMENT
January 16, 1998
FLORAFAX INTERNATIONAL, INC.
▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(Individually and collectively "Debtor")
FIRST UNION NATIONAL BANK
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(Hereinafter referred to as the "Bank")
For value received and to secure payment and performance of the Promissory Note
executed by the Debtor dated January 16, 1998, in the original principal amount
of $5,000,000.00, payable to Bank, and any extensions, renewals, modifications
or novations thereof (the "Note"), this Security Agreement and the other Loan
Documents, and any other obligations of Debtor to Bank however created, arising
or evidenced, whether direct or indirect, absolute or contingent, now existing
or hereafter arising or acquired, due or to become due, including swap
agreements (as defined in 11 U.S.C. section 101), future advances, and all costs
and expenses incurred by Bank to obtain, preserve, perfect and enforce the
security interest granted herein and to maintain, preserve and collect the
property subject to the security interest (collectively, "Obligations"),
Debtor hereby grants to Bank a continuing security interest in and lien upon the
following described property, now owned or hereafter acquired, any additions,
accessions, and substitutions thereof and thereto, and all proceeds and products
thereof, including cash or non-cash dividends (collectively, "Collateral"):
* All accounts, contract rights, leases, and any other rights of Debtor
to payment for goods sold or leased or for services rendered;
furniture; furnishings; fixtures; equipment; machinery; accessories;
moveable trade fixtures; goods held for sale or being processed for
sale in Debtor's business, including all raw materials, supplies, and
other materials used or consumed in Debtor's business, goods in
process, finished goods, and all other items customarily classified as
inventory; building improvement and construction materials, supplies
and equipment; chattel paper; instruments; documents; all funds on
deposit with Bank and its affiliates; and all general intangibles; as
well as all parts, replacements, substitutions, profits, products and
cash and non-cash proceeds of the foregoing (including insurance and
condemnation proceeds payable by reason of condemnation of or loss or
damage thereto) in any form and wherever located. The foregoing
fixture Collateral is located at or affixed to real property known as
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, wherein the record owner is
FLORAFAX INTERNATIONAL, INC.
* All books, records, files, computer programs, data processing records,
computer software, documents and other information, property, or
general intangibles, at any time evidencing, describing, or pertaining
to, and all containers and packages for, the property described above.
* All products and proceeds of any of the property described above in
any form, and all proceeds of such proceeds, including, without
limitation, all cash and credit balances, rents, revenues and profits
from sale, lease or license of any of the collateral, all payments
under any indemnity, warranty or guaranty with respect to any of such
property, all proceeds of fire or other insurance, including any
refunds of unearned premiums in connection with any cancellation,
adjustment, or termination of any insurance policy, all proceeds
obtained as a result of any legal action or proceeding with respect to
any of such property, and claims by Debtor against third parties for
loss or damage to, or destruction of, any of such property.
Page 1 of 6
2
Debtor hereby represents and agrees that:
OWNERSHIP. Debtor owns the Collateral or Debtor will purchase and acquire rights
in the Collateral within ten days of the date advances are made under the Note.
If Collateral is being acquired with the proceeds of an advance under the Note,
the Debtor authorizes Bank to disburse proceeds directly to the seller of the
Collateral. The collateral is free and clear of all liens, security interests,
and claims except those previously reported in writing to Bank, and Debtor will
keep the Collateral free and clear from all liens, security interests and
claims, other than those granted to the Bank.
NAME AND OFFICES. There has been no change in the name of the Debtor, or the
name under which the Debtor conducts business, within the five years preceding
the date of execution of this Security Agreement and Debtor has not moved its
executive offices or residence within the five years preceding the date of
execution of this Security Agreement except as previously reported in writing to
Bank. The taxpayer identification number of Debtor as provided herein is
correct.
TITLE/TAXES. Debtor has good and marketable title to the Collateral and will
warrant and defend same against all claims. Debtor will not transfer, sell, or
lease the Collateral (except in the ordinary course of business). Debtor agrees
to pay promptly all taxes and assessments upon or for the use of the Collateral
and on this Security Agreement. At its option, Bank may discharge taxes, liens,
security interests or other encumbrances at any time levied or placed on the
Collateral. Debtor agrees to reimburse Bank, on demand, for any such payment
made by Bank. Any amounts so paid shall be added to the Obligations.
WAIVERS. Debtor waives presentment, demand, protest, notice of dishonor, notice
of default, demand for payment, notice of intention to accelerate, and notice of
acceleration of maturity. Debtor further agrees not to assert against Bank as a
defense (legal or equitable), as a setoff, as a counterclaim, or otherwise, any
claims Debtor may have against any seller or lessor that provided personal
property or services relating to any part of the Collateral. Debtor waives all
exemptions and homestead rights with regards to the collateral. DEBTOR WAIVES
ANY AND ALL RIGHTS TO NOTICE OR TO HEARING PRIOR TO BANK'S TAKING IMMEDIATE
POSSESSION OR CONTROL OF ANY OF COLLATERAL, and to any bond or security which
might be required by applicable law prior to the exercise of any of Bank's
remedies against any Collateral.
EXTENSIONS, RELEASES. Debtor agrees that Bank may extend, renew or modify any of
the Obligations and grant any releases, compromises or indulgences with respect
to any security for the Obligations, or with respect to any party liable for the
Obligations, all without notice to or consent of Debtor and without affecting
the liability of the Debtor or the enforceability of this Security Agreement.
NOTIFICATIONS OF CHANGE. Debtor will notify Bank in writing at least thirty (30)
days prior to any change in: (i) Debtor's chief place of business and/or
residence; (ii) Debtor's name or identity; or (iii) Debtor's corporate
structure. Debtor will keep the Collateral at the location(s) previously
provided to Bank until such time as Bank provides written advance consent to a
change of location. Debtor will bear the cost of preparing and filing any
documents necessary to protect Bank's liens.
COLLATERAL CONDITION AND LAWFUL USE. Debtor represents that Collateral is in
good repair and condition and that Debtor shall use reasonable care to prevent
Collateral from being damaged or depreciating. Debtor shall immediately notify
Bank of any material loss or damage to the Collateral. Debtor shall not permit
any item of equipment to become a fixture to real estate or an accession to
other personal property. Debtor represents it is in compliance in all respects
with all federal, state and local laws, rules and regulations applicable to its
properties, Collateral, operations, business and finances, including, without
limitation, any federal or state laws relating to liquor (including 18 U.S.C.
3617, et seq.) or narcotics (including 21 U.S.C. section 801, et seq.) and all
applicable federal, state and local laws and regulations intended to protect the
environment.
Page 2 of 6
3
RISK OF LOSS AND INSURANCE. Debtor shall bear all risk of loss with respect to
the Collateral. The injury to or loss of the Collateral, either partial or
total, shall not release Debtor from payment or other performance hereof. Debtor
agrees to obtain and keep in force casualty and hazard insurance on Collateral
naming Bank as loss payee. Such insurance is to be in form and amounts
satisfactory to Bank. All such policies shall provide to Bank a minimum of
thirty (30) days written notice of cancellation. Debtor shall furnish to Bank
such policies, or other evidence of such policies satisfactory to Bank. Bank is
authorized, but not obligated, to purchase any or all insurance or "Single
Interest Insurance" protecting such interest as Bank deems appropriate against
such risks and for such coverage and for such amounts, including either the loan
amount or value of the Collateral at its discretion, all at Debtor's expense. In
such event, Debtor agrees to reimburse Bank for the cost of such insurance and
Bank may add such cost to the Obligations. Debtor shall bear the risk of loss to
the extent of any deficiency in the effective insurance coverage with respect to
loss or damage to any of the Collateral. Debtor hereby assigns to Bank the
proceeds of all such insurance and directs any insurer to make payments directly
to Bank. Debtor hereby appoints Bank its attorney-in-fact, which appointment
shall be irrevocable and coupled with an interest for so long as the Obligations
are unpaid, to file proof of loss and/or any other forms required to collect
from any insurer any amount due from any damage or destruction of the
Collateral, to agree to and bind Debtor as to the amount of said recovery, to
designate payee(s) of such recovery, to grant releases to insurer, to grant
subrogation rights to any insurer, and to endorse any settlement check or draft.
Debtor agrees not to exercise any of the foregoing powers granted to Bank
without the Bank's prior written consent.
ADDITIONAL COLLATERAL. If at any time the Collateral is unsatisfactory to Bank,
then on demand of Bank, Debtor shall immediately furnish such additional
Collateral satisfactory to Bank to be held by Bank as if originally pledged
hereunder and shall execute such additional security agreements and financing
statements as requested by Bank.
FINANCING STATEMENTS. No Financing Statement (other than any filed by Bank or
disclosed above) covering any of the Collateral or proceeds thereof is on file
in any public filing office. This Security Agreement, or a copy thereof, or any
Financing Statement executed hereunder may be recorded. On request of Bank,
Debtor will execute one or more Financing Statements in form satisfactory to
Bank and will pay all costs and expenses of filing the same or of filing this
Security Agreement in any and all public filing offices, wherever filing is
deemed by Bank to be desirable. Bank is authorized to file Financing Statements
relating to Collateral without Debtor's signature where authorized by law.
Debtor appoints Bank as its attorney-in-fact to execute such documents necessary
to accomplish perfection of Bank's security interest. The appointment is coupled
with an interest and shall be irrevocable as long as any Obligations remain
outstanding. Debtor further agrees to take such other actions as might be
requested for the perfection, continuation and assignment, in whole or in part,
of the security interests granted herein. If certificates are issued or
outstanding as to any of the Collateral, Debtor will cause the security
interests of Bank to be properly protected, including perfection by notation
thereon.
LANDLORD/MORTGAGEE WAIVERS. Debtor shall cause each mortgagee of real property
owned by Debtor and each landlord of real property leased by Debtor to execute
and deliver instruments satisfactory in form and substance to Bank by which such
mortgagee or landlord waives its rights, if any, in the Collateral.
CONTRACTS, CHATTEL PAPER, ACCOUNTS, GENERAL INTANGIBLES. Debtor warrants that
the Collateral consisting of contract rights, chattel paper, accounts general
intangibles is (i) genuine and enforceable in accordance with its terms except
as limited by law; (ii) not subject to any defense, set-off, claim or
counterclaim of a material nature against Debtor except as to which Debtor has
notified Bank in writing; and (iii) not subject to any other circumstances that
would impair the validity, enforceability or amount of such Collateral except as
to which Debtor has notified Bank in writing. Debtor shall not amend, modify or
supplement any lease, contract or agreement contained in the Collateral or waive
any provision therein, without prior written consent of Bank.
ACCOUNT INFORMATION. From time to time, at Bank's request, Debtor shall provide
Bank with schedules describing all accounts and contracts, including customers'
addresses, credited or acquired by Debtor and at Bank's request shall execute
and deliver written assignments of contracts and other documents evidencing such
accounts and contracts to Bank. Together with each schedule, Debtor shall, if
requested by Bank, furnish Bank with copies
Page 3 of 6
4
of Debtor's sales journals, invoices, customer purchase orders or the
equivalent, and original shipping or delivery receipts for all goods sold, and
Debtor warrants the genuineness thereof.
ACCOUNT AND CONTRACT DEBTORS. Bank shall have the right to notify the account
and contract debtors obligated on any or all of the Collateral to make payment
thereof directly to Bank and Bank may take control of all proceeds of any such
Collateral, which rights Bank may exercise at any time. The cost of such
collection and enforcement, including attorneys' fees and expenses, shall be
borne solely by Debtor whether the same is incurred by Bank or Debtor. Upon
demand of Bank, Debtor will, upon receipt of all checks, drafts, cash and other
remittances in payment on Collateral, deposit the same in a special bank account
maintained with Bank, over which Bank also has the power of withdrawal.
If Default occurs, no discount, credit, or allowance shall be granted by Debtor
to any account or contract debtor and no return of merchandise shall be accepted
by Debtor without Bank's consent. Bank may, after Default, settle or adjust
disputes and claims directly with account contract debtors for amounts and upon
terms that Bank considers advisable, and in such cases, Bank will credit the
Obligations with the net amounts received by Bank, after deducting all of the
expenses incurred by Bank. Debtor agrees to indemnify and defend Bank and hold
it harmless with respect to any claim or proceeding arising out of any matter
related to collection of the Collateral.
GOVERNMENT CONTRACTS. If any accounts receivable or proceeds of inventory
covered hereby arises from obligations due to the Debtor from any governmental
unit or organization, Debtor shall immediately notify Bank in writing and
execute all documents and take all actions demanded by Bank to ensure
recognition by such governmental unit or organization of the rights of Bank in
the Collateral.
INSTRUMENTS, CHATTEL PAPER. Any Collateral that is instruments, chattel paper
and negotiable documents will be properly assigned to, deposited with and held
by Bank, unless Bank shall hereafter otherwise direct or consent in writing.
Bank may, without notice, before or after maturity of the Obligations, exercise
any or all rights of collection, conversion, or exchange and other similar
rights, privileges and options pertaining to the Collateral, but shall have no
duty to do so.
COLLATERAL DUTIES. Bank shall have no custodial or ministerial duties to perform
with respect to Collateral pledged except as set forth herein; and by way or
explanation and not by way of limitation, Bank shall incur no liability for any
of the following: (i) loss or depreciation of the Collateral (unless caused by
its willful misconduct), (ii) its failure to present any paper for payment or
protest, to protest or give notice of nonpayment, or any other notice with
respect to any paper or Collateral, or (iii) its failure to present or surrender
for redemption, conversion or exchange any bond, stock, paper or other security
whether in connection with any merger, consolidation, recapitalization, or
reorganization, arising out of the refunding of the original security, or for
any other reason, or its failure to notify any party hereto that the Collateral
should be so presented or surrendered.
TRANSFER OF COLLATERAL. Bank may assign its rights in the Collateral or any part
thereof, to the assignee, as well as any subsequent holder hereof, who shall
thereupon become vested with all the powers and rights herein given to the Bank
with respect to the property so transferred and delivered, and Bank shall
thereafter be forever relieved and fully discharged from any liability with
respect to such property so transferred, but with respect to any property not so
transferred, Bank shall retain all rights and powers hereby given.
SUBSTITUTE COLLATERAL. With prior written consent of Bank, other Collateral may
be substituted for the original Collateral herein in which event all rights,
duties, obligations, remedies and security interests provided for, created or
granted shall apply fully to such substitute Collateral.
INSPECTION, BOOKS AND RECORDS. Debtor will at all times keep accurate and
complete records covering each item of Collateral, including the proceeds
therefrom. Bank, or any of its agents, shall have the right, at intervals to be
determined by Bank and without hindrance or delay, to inspect, audit, and
examine the Collateral and to make extracts from the books, records, journals,
orders, receipts, correspondence and other data relating to the
Page 4 of 6
5
Collateral, Debtor's business or any other transaction between the parties
hereto. Debtor will at its expense furnish Bank copies thereof upon request.
CROSS COLLATERALIZATION LIMITATION. As to any other existing or future consumer
purpose loan by Bank to Debtor, within the meaning of the Federal Consumer
Credit Protection Act, Bank expressly waives any security interest granted
herein in the Collateral that Debtor uses as a principal dwelling and household
goods.
ATTORNEYS' FEES AND OTHER COSTS OF COLLECTION. Debtor shall pay all of Bank's
reasonable expenses incurred in enforcing this Agreement and in preserving and
liquidating the Collateral, including but not limited to, reasonable
arbitration, paralegals', attorneys' and experts' fees and expenses, whether
incurred without the commencement of a suit, in any trial, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding.
DEFAULT. If any of the following occurs, a default ("Default") under this
Security Agreement shall exist: (i) the failure of timely payment or performance
of any of the Obligations or a default under any Loan Document; (ii) any breach
of any representation or agreement contained or referred to in this Security
Agreement or other Loan Document; (iii) any loss, theft, substantial damage, or
destruction of the Collateral not fully covered by insurance, or as to which
insurance proceeds are not remitted to Bank within thirty (30) days of the loss;
any sale (except the sale of inventory in the ordinary course of business),
lease, or encumbrance of any of the Collateral without prior written consent of
Bank; or the making of any levy, seizure, or attachment on or of the Collateral
which is not removed within ten (10) days; or (iv) the death of, appointment of
guardian for, dissolution of, termination of existence of, loss of good standing
status by, appointment of a receiver for, assignment for the benefit of
creditors of, or commencement of any bankruptcy or insolvency proceeding by or
against Debtor, its Subsidiaries or Affiliates, if any, or any general partner
of or the holder(s) of the majority ownership interests of Debtor or any party
to the Loan Documents.
REMEDIES ON DEFAULT (INCLUDING POWER OF SALE): If a Default occurs, all of the
Obligations shall be immediately due and payable, without notice and Bank shall
have all the rights and remedies of a secured party under the Uniform Commercial
Code. Without limitation thereto, Bank shall have the following rights and
remedies: (i) to take immediate possession of the Collateral, without notice or
resort to legal process, and for such purpose, to enter upon any premises on
which the Collateral or any part thereof may be situated and to remove the same
therefrom, or, at its option, to render the Collateral unusable or dispose of
said Collateral on Debtor's premises. (ii) To require Debtor to assemble the
Collateral and make it available to Bank at a place to be designated by Bank.
(iii) To exercise its right of set-off or bank lien as to any monies of Debtor
deposited in demand, checking, time, savings, certificate of deposit or other
accounts of any nature maintained by Debtor with Bank or Affiliates of Bank,
without advance notice, regardless of whether such accounts are general or
special. (iv) To dispose of the Collateral, as a unit or in parcels, separately
or with any real property interests also securing the Obligations, in any county
or place to be selected by Bank, at either private or public sale (at which
public sale, bank may be the purchaser) with or without having the Collateral
physically present at said sale. (v) Any notice of sale, disposition or other
action by Bank required by law and sent to Debtor at Debtor's address shown
above, or at such other address of Debtor as may from time to time be shown on
the records of Bank, at least five (5) days prior to such action, shall
constitute reasonable notice to Debtor. Notice shall be deemed given or sent
when mailed postage prepaid to Debtor's address as provided herein. (vi) Bank
shall be entitled to apply the proceeds of any sale or other disposition of the
Collateral, and the payments received by Bank with respect to any of the
Collateral, to the Obligations in such order and manner as Bank may determine.
(vii) Collateral that is subject to rapid declines in value and is customarily
sold in recognized markets may be disposed of by Bank in a recognized market for
such collateral without providing notice of sale.
MISCELLANEOUS. (i) AMENDMENTS AND WAIVERS. No waivers, amendments or
modifications of any provision of this Security Agreement shall be valid unless
in writing and signed by an officer of Bank. No waiver by Bank of any Default
shall operate as a waiver of any other Default or of the same Default on a
future occasion. Neither the failure of, nor any delay by, Bank in exercising
any right, power or privilege granted pursuant to this Security Agreement shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any
Page 5 of 6
6
other or further exercise of any other right, power or privilege. (ii)
ASSIGNMENT. All rights of Bank hereunder are freely assignable, in whole or in
part, and shall inure to the benefit of and be enforceable by Bank, its
successors, assigns and affiliates. Debtor shall not assign its rights and
interest hereunder without the prior written consent of Bank, and any attempt by
Debtor to assign without Bank's prior written consent is null and void. Any
assignment shall not release Debtor from the Obligations. This Security
Agreement shall be binding upon the Debtor, and the heirs, personal
representatives, successors, and assigns of Debtor. (iii) APPLICABLE LAW;
CONFLICT BETWEEN DOCUMENTS. This Security Agreement shall be governed by and
construed under the law of the state in which the office of Bank as stated above
is located without regard to that state's conflict of laws principles. If any
terms of this Security Agreement conflict with the terms of any commitment
letter or loan proposal, the terms of this Security Agreement shall control.
(iv) JURISDICTION. Debtor irrevocably agrees to non-exclusive personal
jurisdiction in the state in which the office of Bank as stated above is
located. (v) SEVERABILITY. If any provision of this Security Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective but only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement. (vi) NOTICES. Any notices to Debtor shall be sufficiently
given, if in writing and mailed or delivered to the address of Debtor shown
above or such other address as provided hereunder; and to Bank, if in writing
and mailed or delivered to Bank's office address shown above or such other
address as Bank may specify in writing from time to time. In the event that
Debtor changes Debtor's address at any time prior to the date this Note is paid
in full, Debtor agrees to promptly give written notice of said change of address
by registered or certified mail, return receipt requested, all charges prepaid.
(vii) CAPTIONS. The captions contained herein are inserted for convenience only
and shall not affect the meaning or interpretation of this Security Agreement or
any provision hereof. The use of the plural shall also mean the singular, and
vice versa. (viii) LOAN DOCUMENTS. The term "Loan Documents" refers to all
documents executed in connection with the Obligations and may include, without
limitation, commitment letters, loan agreements, guaranty agreements, other
security agreements, letters of credit, instruments, financing statements,
mortgages, deeds of trust, deeds to secure debt, and any amendments or
supplements (excluding swap agreements as defined in 11 U.S.C. section 101).
(ix) JOINT AND SEVERAL LIABILITY. If more than one person has signed this
Security Agreement, such parties are jointly and severally obligated hereunder.
(x) BINDING CONTRACT. Debtor by execution and Bank by acceptance of this
Security Agreement, agree that each party is bound by all terms and provisions
of this Security Agreement.
IN WITNESS WHEREOF, Debtor, on the day and year first written above, has caused
this Agreement to be executed under seal.
FLORAFAX INTERNATIONAL, INC.
By:/s/ ▇▇▇▇▇ ▇'▇▇▇▇
Corporate --------------------------------
Seal ▇▇▇▇▇ ▇'▇▇▇▇, Vice President
TAXPAYER IDENTIFICATION NUMBER: ▇▇-▇▇▇▇▇▇▇
Access #28890
Page 6 of 6