Exhibit
10.12


 


This Document Prepared By

and After Recording Return To:


 


Kyle W. Henderson


Chapman and Cutler LLP


111 West Monroe Street


Chicago, Illinois  60603


 


 


	
   

  	
  Space Above this Line
  Reserved for

  Recorder’s Use Only

  



 


NOTICE:  THIS INSTRUMENT SECURES FUTURE ADVANCES
UNDER A REVOLVING CREDIT FACILITY THE PRIORITY OF WHICH DATE TO THE RECORDING
DATE HEREOF.  THIS INSTRUMENT PROVIDES
FOR VARIABLE RATES OF INTEREST.


 


SECOND
SUPPLEMENT TO MORTGAGE AND

SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS


 


This Second Supplement to Mortgage and Security
Agreement with Assignment of Rents dated as of July 31, 2003 (the “Supplement”)
is being entered into by Florists’
Transworld Delivery, Inc., a Michigan corporation, formerly known as
Florists’ Transworld Delivery Association, a Michigan not-for-profit
corporation, with its principal place of business and mailing address at
3113 Woodcreek Drive, Downers Grove, Illinois 60515 (hereinafter referred
to as “Mortgagor”),
to Harris Trust and Savings Bank, an Illinois banking corporation with its
principal place of business at 111 West Monroe Street, Chicago, Illinois
60603 (“Harris”),
acting as administrative agent hereunder for the Lenders hereinafter identified
and defined (Harris acting as such agent and any successor or successors to
Harris in such capacity being hereinafter referred to as “Mortgagee”);


 


WITNESSETH
THAT:


 


Whereas, Mortgagor did
heretofore execute and deliver to Mortgagee that certain Mortgage and Security
Agreement with Assignment of Rents dated September 27, 2001, and recorded
in the Recorder’s Office of DuPage County, Illinois on September 28, 2001,
as Document No. R2001-208079, as supplemented by that certain First
Supplement to Mortgage and Security Agreement with Assignment of Rents dated as
of September 27, 2002, and recorded in the Recorder’s Office of DuPage County,
Illinois on October 4, 2002, as Document No. R2002-260314 (the “Mortgage”),
encumbering the property described on Schedule I


 


Downers Grove, Illinois


 

















 


attached hereto, in order to secure certain indebtedness of Mortgagor
now or from time to time owing to Mortgagee; and


 


Whereas, the Mortgage
currently secures, among other things, (i) those certain Revolving Notes
of Mortgagor (the “Existing Revolving Notes”), payable to the order of the respective
Lender named therein in the aggregate principal amount of $75,000,000 whereby
Mortgagor promises to pay said principal amount (or such lesser amount as may
be outstanding at the maturity thereof) on December 31, 2005, the maturity
date thereof (the “Termination Date”) and (ii) Swing Line Notes of
Mortgagor payable to the order of Harris and maturing no later than the
Termination Date in an aggregate principal amount which when combined with the
principal amount of loans outstanding under the Existing Revolving Notes and
Letters of Credit (as defined below) from time to time, shall not at any one
time exceed $75,000,000 (the “Swing Line Notes”), the Existing
Revolving Notes and Swing Line Notes having been issued under, and subject to
the provisions of, and bearing interest as provided in, that certain Amended
and Restated Credit Agreement dated as of September 27, 2002 among
Mortgagee, Mortgagor, FTD, Inc., a Delaware corporation (the “Parent”),
FTD.COM INC., a Delaware corporation (“FTD.COM”), certain subsidiaries of the
Parent as guarantors (the “Guarantors”) and the financial
institutions party thereto (each of such banks from time to time party to the
Credit Agreement being hereinafter referred to as a “Lender” and collectively as
the “Lenders”)
(said Amended and Restated Credit Agreement, as the same may be amended,
modified or restated from time to time, being herein referred to as the “Credit
Agreement”); and


 


Whereas, Mortgagor,
the Parent, FTD.COM and the Guarantors have concurrently herewith entered into
a First Amendment and Waiver to Amended and Restated Credit Agreement with
Mortgagee and the Lenders bearing even date herewith (the “First Amendment”) whereby
the parties have agreed, among other things, to add FTD.COM as a party which
may borrow Revolving Loans under the Credit Agreement, and to amend various
other terms and conditions set forth in the Credit Agreement; and


 


Whereas, pursuant to
the First Amendment, FTD.COM is concurrently herewith executing and delivering
Revolving Notes payable to the order of the respective Lender named therein in
the aggregate principal amount of $75,000,000 whereby FTD.COM promises to pay
said principal sum (or so much thereof as may be outstanding) at the maturity
thereof on the Termination Date, together with interest thereon as set forth in
the Credit Agreement (such Revolving Notes made by FTD.COM, and any and all
notes issued in extension or renewal thereof or in substitution or replacement
therefor, being hereinafter referred to as the “FTD.COM Revolving Notes”;
and the FTD.COM Revolving Notes and the Existing Revolving Notes being
hereinafter collectively referred to as the “Revolving Notes”); and


 


Whereas, pursuant to
the Credit Agreement, Mortgagor has previously executed and delivered the
Existing Revolving Notes and the Swing Line Notes (which Existing Revolving
Notes and Swing Line Notes remain in full force and effect) in an aggregate
principal amount which when combined with the principal amount of loans
outstanding under the FTD.COM Revolving Notes and Letters of Credit (as defined
below) from time to time, shall not at any one time exceed $75,000,000, payable
to the order of the Lenders named thereon and maturing no later than the
Termination Date (the Existing Revolving Notes, the FTD.COM Revolving Notes


 


2

















 


and the Swing Line Notes, and any and all notes issued in extension or
renewal thereof or in substitution or replacement therefor, being hereinafter
collectively referred to as the “Restated Notes”); and


 


Whereas, pursuant to the terms of the Credit Agreement,
Harris or certain other Lenders may from time to time issue letters of credit
(the “Letters
of Credit”) for the account of Mortgagor with expiry dates on or
before the Termination Date in an aggregate face amount which, when combined
with the principal amount of loans outstanding under the Revolving Notes from
time to time, shall not at any one time exceed $75,000,000; and


 


Whereas, Mortgagor and
its Subsidiaries may from time to time enter into one or more interest rate
swap agreements, interest rate cap agreements, interest rate collar agreements,
interest rate hedging agreements, interest rate futures agreements, foreign
currency contracts, currency swap contracts or similar agreements or
arrangements with one or more of the Lenders or their affiliates, for the
purpose of hedging or otherwise protecting Mortgagor or any such Subsidiary
against changes in interest rates and currency exchange rates (the liability of
Mortgagor or such Subsidiary in respect of such agreements and arrangements
with such Lenders or affiliates being hereinafter referred to as “Hedging
Liability”) (Mortgagee and the Lenders, together with any affiliates
of the Lenders to whom any Hedging Liability is owed, being hereinafter
referred to collectively as the “Secured Creditors” and individually as a “Secured
Creditor”); and


 


Whereas, as a
condition precedent to entering into the First Amendment and making certain
other financial accommodations to Mortgagor and FTD.COM, Mortgagee requires
Mortgagor, and to accommodate that requirement Mortgagor desires by this
Supplement, to confirm and assure that all the real estate and other
properties, rights, interests and privileges of Mortgagor which are currently
subject to the lien of the Mortgage be and constitute collateral security for
the indebtedness which is evidenced by the Restated Notes; and


 


Whereas, the Mortgage
is to continue to secure all the indebtedness now secured thereby, this
Supplement being executed and delivered to confirm and assure the foregoing;


 


Now, Therefore, for and in consideration of
the execution and delivery by Mortgagee and the Lenders of the First Amendment,
and other good and valuable consideration, receipt whereof is hereby
acknowledged, the Mortgage shall be and hereby is supplemented and amended as
follows, to wit:


 


To secure (i) the
payment of the principal and premium, if any, of and interest on the Restated
Notes as and when the same become due and payable (whether by lapse of time, acceleration
or otherwise) and all advances now or hereafter made thereon, (ii) the
payment of all sums due or owing with respect to Hedging Liability,
(iii) the payment and performance of all obligations arising under any
applications executed by Mortgagor in connection with any of the Letters of
Credit, including the obligation of Mortgagor to reimburse the Mortgagee for
any draws under the Letters of Credit, (iv) the payment of all other
indebtedness, obligations and liabilities which the Mortgage as supplemented
hereby secures pursuant to any of its terms, and (v) the performance and
observance of


 


3

















 


the covenants and agreements contained in the Mortgage
as supplemented hereby, the Credit Agreement, the Restated Notes and any other
instrument or document securing any of the foregoing or setting forth terms and
conditions applicable thereto (all of such indebtedness, obligations,
agreements and liabilities described in clauses (i), (ii), (iii), (iv) and
(v) above being hereinafter collectively referred to as the “indebtedness
hereby secured”), Mortgagor does hereby grant, bargain, sell,
convey, mortgage, warrant, assign, and pledge unto Mortgagee, its successors
and assigns, and grant to Mortgagee, its successors and assigns a security
interest in, all and singular that certain real estate lying and being in
DuPage County in the State of Illinois described on Schedule I attached hereto
and made a part hereof, together with all of the properties, rights, interests
and privileges described in Granting Clauses I through VII, both
inclusive, of the Mortgage, each and all of such Granting Clauses being hereby
incorporated by reference herein with the same force and effect as though set
forth herein in their entirety.  The
foregoing grant of a lien is in addition to and supplemental of and not in
substitution for the grant of the lien created and provided for by the
Mortgage, and nothing herein contained shall affect or impair the lien or
priority of the Mortgage as to the indebtedness which would be secured thereby
prior to giving effect to this Supplement.


 


In order to induce Mortgagee and the Lenders to enter
into the First Amendment, and to accept this Supplement, Mortgagor hereby
further covenants and agrees with, and represents and warrants to, Mortgagee as
follows:


 


1.                                       It
is hereby agreed that all the indebtedness evidenced by the Restated Notes
issued pursuant to the Credit Agreement shall be secured by the Mortgage in the
same manner as if such indebtedness had been specifically described therein as
indebtedness secured thereby.  All
references to the Notes contained in the Mortgage shall be deemed to be
references to the Restated Notes.


 


2.                                       Mortgagor
hereby represents and warrants to Mortgagee that as of the date hereof each of
the representations and warranties set forth in the Mortgage as supplemented
hereby are true and correct and that no Event of Default (as such term is
defined in the Mortgage), or any other event which with the lapse of time or
the giving of notice, or both, would constitute such an Event of Default, has
occurred and is continuing or shall result after giving effect to this
Supplement.  Mortgagor hereby repeats
and reaffirms all covenants and agreements contained in the Mortgage, each and all
of which shall be applicable to all of the indebtedness secured by the Mortgage
as supplemented hereby.  Mortgagor
repeats and reaffirms its covenant that all the indebtedness secured by the
Mortgage as supplemented hereby will be promptly paid as and when the same
becomes due and payable.


 


3.                                       All
capitalized terms used herein without definition shall have the same meanings
herein as they have in the Mortgage. 
The definitions provided herein of any capitalized terms shall apply to
such capitalized terms as the same appear in the Mortgage as supplemented
hereby, all to the end that any capitalized terms defined herein and used in
the Mortgage as supplemented hereby shall have the same meanings in the
Mortgage as supplemented hereby as are given to such capitalized terms
herein.  Without limiting


 


4

















 


the foregoing, all references in the Mortgage to the
term “indebtedness
hereby secured” shall be deemed references to all the indebtedness,
obligations and liabilities secured by the Mortgage as supplemented hereby; all
references in the Mortgage to the term Notes shall be deemed references,
collectively, to the Restated Notes and any and all notes issued in extension
or renewal thereof or in substitution or replacement therefor; and all
references in the Mortgage to the Credit Agreement shall be deemed references
to the Credit Agreement as amended by the First Amendment and as the same may
from time to time hereafter be further amended, modified or restated.


 


4.                                       All
of the provisions, stipulations, powers and covenants contained in the Mortgage
shall stand and remain unchanged and in full force and effect except to the
extent specifically modified hereby and shall be applicable to all of the
indebtedness, obligations and liabilities secured by the Mortgage as
supplemented hereby.


 


5.                                       Mortgagor
acknowledges and agrees that the Mortgage as supplemented hereby is and shall
remain in full force and effect, and that the Mortgaged Premises are and shall
remain subject to the lien and security interest granted and provided for by
the Mortgage for the benefit and security of all the indebtedness hereby
secured.  Without limiting the
foregoing, Mortgagor hereby agrees that, notwithstanding the execution and
delivery hereof, (i) all rights and remedies of Mortgagee under the
Mortgage, (ii) all obligations of Mortgagor thereunder and (iii) the
lien and security interest granted and provided for thereby are and as amended
hereby shall remain in full force and effect for the benefit and security of
all the indebtedness hereby secured, it being specifically understood and
agreed that this Supplement shall constitute and be, among other things, an
acknowledgement and continuation of the rights, remedies, lien and security
interest in favor of Mortgagee, and of the obligations of Mortgagor to
Mortgagee, which exist under the Mortgage as supplemented hereby.


 


6.                                       This
Supplement may be executed in any number of counterparts and by different
parties hereto on separate counterpart signature pages, each of which when so
executed shall be an original but all of which to constitute one and the same
instrument.


 


7.                                       No
reference to this Supplement need be made in any note, instrument or other
document making reference to the Mortgage, any reference to the Mortgage in any
of such to be deemed to be a reference to the Mortgage as supplemented
hereby.  This instrument shall be
construed and governed by and in accordance with the laws of the State of
Illinois.


 


8.                                       Wherever
herein any of the parties hereto is referred to, such reference shall be deemed
to include the successors and assigns of such party; and all the covenants,
promises and agreements by or on behalf of Mortgagor, or by or on behalf of
Mortgagee, or by or on behalf of the holder or holders of the indebtedness
hereby secured contained in the Mortgage as supplemented hereby shall bind and
inure to the benefit of the respective successors and assigns of such parties,
whether so expressed or not.


 


5

















 


In  Witness  Whereof, Mortgagor has caused these presents to be duly
executed the day and year first above written.


 


	
   

  	
  FLORISTS’ TRANSWORLD DELIVERY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ CARRIE A. WOLFE

  	
   

  
	
   

  	
   

  	
  Name

  	
  Carrie A. Wolfe

  	
   

  
	
   

  	
   

  	
  Title

  	
  CFO

  	
   

  
							



 


Accepted and agreed to in Chicago, Illinois as of the
day and year first above written.


 


	
   

  	
  HARRIS TRUST AND
  SAVINGS BANK, as

  Mortgagee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ KIRBY M. LAW

  	
   

  
	
   

  	
   

  	
  Name

  	
  Kirby M. Law

  	
   

  
	
   

  	
   

  	
  Title

  	
  Vice President

  	
   

  
							



 


6

















 


	
  State of Illinois

  	
   

  	
  )

  	
   

  
	
   

  	
   

  	
  )

  	
  SS.

  
	
  County of DuPage

  	
   

  	
  )

  	
   

  



 


I, the undersigned, Notary Public in and for said
County, in the State aforesaid, do hereby certify that Carrie Wolfe, CFO of
Florists’ Transworld Delivery, Inc., a Michigan corporation, who is personally
known to me to be the same person whose name is subscribed to the foregoing
instrument as such Carrie Wolfe appeared before me this day in person and
acknowledged that he/she signed and delivered the said instrument as his/her
own free and voluntary act and as the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.


 


Given under my hand and notarial seal, as of this 29th
day of  July, 2003.


 


 


	
   

  	
  /S/ BRENDA S. WILLEY

  	
   

  
	
   

  	
  Notary Public

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Brenda S. Willey

  	
   

  
	
   

  	
  (Type or Print Name)

  	
   

  
	
   

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  Commission Expires:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  9-6-06

  	
   

  	
   

  
				



 

















 


 


	
  State of Illinois

  	
   

  	
  )

  	
   

  
	
   

  	
   

  	
  )

  	
  SS.

  
	
  County of Cook

  	
   

  	
  )

  	
   

  



 


I, the undersigned, Notary Public in and for said
County, in the State aforesaid, do hereby certify that Kirby M. Law, Vice President
of Harris Trust and Savings Bank, an Illinois banking corporation, who is
personally known to me to be the same person whose name is subscribed to the
foregoing instrument as such Vice President, appeared before me this day in
person and acknowledged that he/she signed and delivered the said instrument as
his/her own free and voluntary act and as the free and voluntary act and deed
of said corporation for the uses and purposes therein set forth.


 


Given under my hand and notarial seal, as of this 31st
day of July, 2003.


 


 


	
   

  	
  /S/ NANCY J. SKODA

  	
   

  
	
   

  	
  Notary Public

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Nancy J. Skoda

  	
   

  
	
   

  	
  (Type or Print Name)

  	
   

  
	
   

  	
   

  
	
  (Notarial Seal)

  	
   

  
	
   

  	
   

  
	
  Commission Expires:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Nov. 2, 2004

  	
   

  	
   

  
				



 

















 


SCHEDULE
I


 


LEGAL
DESCRIPTION


 


Debtor


 


Florists’ Transworld Delivery, Inc.


 


Legal Description


 


File No.: CC201388


 


LOTS 1 AND 2 IN ESCHEM SUBDIVISION OF LOT 7 IN THE WOODCREEK BUSINESS
PARK, BEING A SUBDIVISION OF LOT 7 IN WOODCREEK BUSINESS PARK RESUBDIVISION OF
LOTS 1 THROUGH 14 AND VACATED EDGEBROOK PLACE, ALL IN WOODCREEK BUSINESS PARK,
BEING A SUBDIVISION OF PARTS OF SECTIONS 25 AND 36, TOWNSHIP 39 NORTH, RANGE
10, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF SAID ESCHEM
SUBDIVISION OF LOT 7 IN THE WOODCREEK BUSINESS PARK, RECORDED OCTOBER 22, 1985
AS DOCUMENT R85-91342 AND CERTIFICATE OF CORRECTION RECORDED DECEMBER 2, 1985
AS DOCUMENT R85-105018, IN DUPAGE COUNTY, ILLINOIS.


 


 


	
  P.I.N. no.:

  	
  05-36-202-011

  
	
   

  	
  05-36-202-012

  
	
  Property
  Address:

  	
  3113 Woodcreek Drive

  
	
   

  	
  Downers Grove, IL 
  60515