EXHIBIT 10.24
PURCHASE AGREEMENT
DATED AS OF DECEMBER 1, 1996
among
TRANSMEDLA NETWORK INC.
TRANSMEDIA RESTAURANT COMPANY INC.
TRANSMEDIA SERVICE COMPANY INC.
and
TNI FUNDING I, INC.,
as Purchaser
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.......................................1
Section 1.01. Definitions...................................1
ARTICLE II PURCHASE OF ASSETS; CONSIDERATION AND PAYMENT....1
Section 2.01 Purchase of Assets..........................1
Section 2.02 Purchase Price..............................2
Section 2.03 Payment of Purchase Price...................2
Section 2.04 Purchase of Ineligible Contract Assets......3
Section 2.05 Chargebacks.................................4
ARTICLE III CONDITIONS TO PURCHASES OF ASSETS ..............4
Section 3.01 Conditions Precedent to All of the
Purchaser's Payments for Assets ............4
Section 3.02 Condition Precedent to Transmedia's and
the Initial Sellers' Obligations on
Initial Purchase Date.......................6
ARTICLE IV REPRESENTATIONS AND WARRANTS.....................6
Section 4.01 Representations and Warranties of
the Parties.................................6
Section 4.02 Additional Representations of Transmedia
and the Initial Sellers ....................7
ARTICLE V COVENANTS........................................13
Section 5.01 Affimative Covenants of Transmedia
and the Initial Sellers....................13
Section 5.02 Negative Covenants of Transmedia
and the Initial Sellers....................20
ARTICLE VI ADMINISTRATION .................................21
Section 6.01 Daily Report...............................21
Section 6.02 Settlement Statement.......................22
Section 6.03 Termination................................22
Section 6.04 Grant of License to Use Software...........22
ARTICLE VII PURCHASE TERMINATION EVENTS ...................23
Section 7.01 Purchase Termination Events................23
Section 7.02 Remedies...................................24
ARTICLE VIII INDEMNIFICATION ..............................25
Section 8.01 Indemnities by Transmedia and the
Initial Sellers............................25
-i-
ARTICLE IX [RESERVED]......................................25
ARTICLE X MISCELLANEOUS ...................................25
Section 10.01 Amendments, etc.............................25
Section 10.02 Notices, etc................................26
Section 10.03 No Waiver; Remedies ........................26
Section 10.04 Binding Effect..............................26
Section 10.05 Governing Law...............................27
Section 10.06 Headings....................................27
Section 10.07 Reserved....................................27
Section 10.08 Acknowledgment of Assignment ...............27
Section 10.09 Role of Transmedia..........................27
Section 10.10 Waiver of Jury Trial........................28
Section 10.11 Severability................................28
Section 10.12 No Petition in Bankruptcy...................28
Section 10.13 Counterparts................................28
Section 10.14 Third Party Beneficiaries ..................28
Section 10.15 Junsdiction; Consent to Service of Process..28
Section 10.16 Confirmation of Intent .....................29
Section 10.17 No Interest in Cardmember Agreements........29
Section 10.18 Collateral Agent Appointed Attorney-in-Fact.30
EXHIBITS
Exhibit A - Form of Settlement Statement
Exhibit B - Form of Daily Report
Exhibit C - Form of Contract
Exhibit-D - Form of Confirmation of Sale
SCHEDULES
Schedule I - Account Schedule Schedule II - Trade Names Schedule
III - Cardmember Agreements Schedule IV - List of Contracts
Schedule VI - [Intentionally Omitted] Schedule VII - Computer
Software
ANNEXES
Annex I - Glossary of Terms
-ii-
PURCHASE AGREEMENT (the "AGREEMENT"), dated as of December 1, 1996, among
TRANSMEDIA RESTAURANT COMPANY INC., a Delaware corporation, TRANSMEDIA SERVICE
COMPANY INC., a Delaware corporation (together, the "INITIAL SELLERS"),
TRANSMEDIA NETWORK INC., a Delaware corporation ("TRANSMEDIA"), and TNI FUNDING
INC., a Delaware special purpose corporation (the "PURCHASER").
WITNESSETH:
WHEREAS, the Purchaser is in the business of purchasing certain assets from
the Initial Sellers and selling them to TNI Funding Company I, L.L.C.;
WHEREAS, the Initial Sellers have in the course of their business generated
certain assets and will in the future generate additional assets;
Now, THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby expressly acknowledged, the Purchaser, Transmedia and the Initial
Sellers agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. As used in this Agreement, capitalized terms
used herein but not defined herein shall have the meanings assigned to such
terms in Annex I.
ARTICLE II
PURCHASE OF ASSETS; CONSIDERATION AND PAYMENT
SECTION 2.01. PURCHASE OF ASSETS. (a) Each of the Initial Sellers hereby
sells, assigns, transfers and conveys to the Purchaser on each Purchase Date on
the terms and subject to the conditions specifically set forth herein, all of
its right, title and interest, in, to and under (i) all rights to receive food
and beverages ("MEALS") or Meal credits (the "CREDITS") purchased by any
Subsidiary of Transmedia from any of the Assigned Restaurants pursuant to any
Contract; (ii) all rights of the Initial Sellers to, in and under any Contract
with an Assigned Restaurant; (iii) all rights of the Initial Sellers, whether
now existing or hereafter arising, under the Cardmember Agreements to authorize
charges to and recover payments from Cardmembers' Credit Card Accounts in
connection with the purchase of Meals by any Cardmember at any Assigned
Restaurant (the "RECEIVABLES"); (iv) all Recoveries; (v) all other accounts,
contract rights, chattel paper, instruments, Contract Files, general intangibles
and other obligations of any Restaurant with respect to any of the foregoing,
now or hereafter existing, whether or not arising out of or in connection with
the sale or lease of goods or the rendering of services, and including without
limitation, the right to payment of any Receivables, Recoveries, Credits or
other obligations of a Restaurant or any Credit Card
Company with respect to any of the foregoing; (vi) all rights in and to all
security agreements and other contracts securing or otherwise relating to any of
the foregoing; (vii) al1 guarantees, insurance and other agreements or
arrangements of whatever character from time to time supporting payment of any
of the foregoing; ((i), (ii), (iii), (iv), (v), (vi) and (vii) are collectively
referred to as the "ASSETS"); and (viii) cash in the amount of the Reserve
Amount, if any; and (ix) on the initial Purchase Date, all of Transmedia Service
Company Inc.'s right title and interest to the tradenames, trademarks and
service marks listed on Schedule II hereto
(b) On each Purchase Date, all of the Initial Sellers' right, title and
interest in and to all newly created Assets relating to the Assigned Restaurants
shall be sold, assigned, transferred and conveyed to the Purchaser upon the
delivery to the Collateral Agent (either electronically or on paper) of the
Daily Report on such date in accordance with Section 6.01.
(c) All sales of Assets by the Initial Sellers hereunder shall be without
recourse to, or representation or warranty of any kind (express or implied) by,
Transmedia or the Initial Sellers except as otherwise specifically provided
herein.
(d) It is understood and agreed that no purchases of Assets hereunder shall
occur after the Purchase Termination Date.
(e) On each Purchase Date, the Initial Seller shall transmit to the Trustee
via electronic or paper transmission, or by such other means as may be agreeable
to the Trustee, the Daily Report which shall include the list of Contracts and
Cardmember Agreements sold to the Purchaser. The electronic delivery by the
Initial Seller or made on the Initial Seller's behalf of such Daily Report shall
be deemed conclusive evidence of an assignment by the Initial Seller to the
Purchaser of all of the Initial Seller's right, title and interest in and to the
Cardmember Agreements and Contracts listed in such Daily Report. On each Note
Payment Date, the Initial Seller and the Purchaser will conf~ in writing the
list of Assets sold to the Purchaser pursuant to this Agreement by delivery to
the Collateral Agent of a Confirmation of Sale and Assignment in the form
attached hereto as Exhibit D.
SECTION 2.02. PURCHASE PRICE. The amount payable by the Purchaser (the
"Purchase Price"), on the initial Purchase Date and on any Purchase Date
thereafter, for Assets sold to the Purchaser by each Initial Seller on such
date, shall be equal to the aggregate of the Contract Prices of each Contract
constituting such Assets not previously paid for by the Purchaser, in each case
as adjusted pursuant to Sections 2.04(a) and 2.05 and, with respect to the
initial Purchase Date, all of the common stock of the Purchaser. On the Closing
Date, the Initial Sellers shall deposit, or cause to be deposited, into the
Resene Account, cash in an amount equal to the Resene Amount, if any.
SECTION 2.03. PAYMENT OF PURCHASE PRICE. (a) The Purchase Price for Assets
shall be paid to the applicable Initial Seller in the manner provided below on
the Closing Date and each day thereafter that the Purchaser is required under
the Purchase and Servicing Agreement to sell Contracts to the Issuer pursuant to
Section 2.03 of the Purchase and
-2-
Servicing Agreement (each a "Purchase Date"). The Purchase Price shall be
paid by the Purchaser to the applicable Initial Seller on the initial Purchase
Date in the form of cash and contribution of capital. On each Purchase Date
thereafter the Purchase Price shall be paid by the Purchaser to the applicable
Initial Seller as follows:
(i) in cash, an amount equal to the lesser of (1) the Purchase Price
and (2) the Available Cash on such Purchase Date, to be divided between the
Initial Sellers in proportion to the Purchase Price of the Assets sold by
each Initial Seller on such date; and
(ii) to the extent that any portion of the Purchase Price remains
unpaid, such amounts will be treated as a contribution of capital from such
Initial Seller.
(b) Unless otherwise specified herein, all payments under this Agreement
shall be made not later than the end of business, New York time, on the date
specified therefor in lawful money of the United States of America in same day
funds and (i) if to an Initial Seller, to the respective bank account designated
in writing by the Initial Seller to the Purchaser and (ii) if to the Purchaser,
to the bank account designated in writing by the Purchaser. Amounts not paid by
the Initial Sellers or Transmedia when due under this Agreement shall bear
interest at a rate equal at all times to the lesser of (i) the Note Rate and
(ii) the maximum rate permitted by applicable law, payable upon demand.
(c) Whenever any payment to be made under this Agreement shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day.
SECTION 2.04. PURCHASE OF INELIGIBLE CONTRACT ASSETS. (a) If at any time it
is determined that any of the Contracts constituting Purchased Assets was an
Ineligible Contract Asset on its Purchase Date, (i) Transmedia and the
applicable Initial Seller, severally and not jointly, shall be obligated to pay
for the repurchase of such Purchased Assets on the next Purchase Date and (ii)
the Contract Price of such Ineligible Contract Assets on the next Purchase Date
(the "REPURCHASE AMOUNT") shall be subtracted from the aggregate Contract Prices
of the Purchased Assets appearing on the related Daily Report but not previously
paid for by the Purchaser pursuant to Section 2.03 (to the extent that such
Repurchase Amount has not already been subtracted on the related Daily Report in
determining the cash Purchase Price of Purchased Assets previously paid for
pursuant to Section 2.03). In the event that the Repurchase Amount exceeds the
aggregate Contract Prices of such unpaid-for Purchased Assets on such Daily
Report, Transmedia or the applicable Initial Seller shall immediately pay such
excess in cash to the Purchaser.
(b) The Purchaser, Transmedia and the Initial Sellers agree that after
payment of the Repurchase Amount for Ineligible Contract Assets as provided in
clause (a) above, Transmedia or the Initial Seller, as applicabh, shall be
entitled to all Collections received thereafter with respect to such Ineligible
Contract Assets and such Assets shall no longer constitute Purchased Assets for
purposes of this Agreement.
-3-
(c) Except as expressly set forth in this Agreement, Transmedia and the
Initial Sellers shall not have any right under this Agreement, by implication or
otherwise, to repurchase from the Purchaser any Purchased Assets or to rescind
or otherwise retroactively affect any purchase of any Purchased Assets after the
Purchase Date relating thereto.
SECTION 2.05. CKARGEBACKS. (a) Transmedia. acting on behalf of the
Purchaser, may accept chargebacl~s for full or partial credit or make a daily
adjustment in the Credits with respect to a Restaurant under a Contract (a
"CREDIT ADJUSTMENT"), provided, that such adjustment is permitted by and made
in accordance with the Restaurant Guidelines. Each Credit Adjustment (including
any adjustment required by any Requirements of Law) shall be made by Transmedia
on each Date of Processing.
(b) On each Daily Report, Transmedia shall add the Credits corresponding to
such Credit Adjustment (the "RETURNED CREDITS") (to the extent not added
pursuant to a prior Daily Report) to the Purchased Assets appearing on such
Daily Report.
ARTICLE III
CONDITIONS TO PURCHASES OF ASSETS
SECTION 3.01. CONDITIONS PRECEDENT TO ALL OF THE PURCHASER'S PAYMENTS FOR
ASSETS. The obligation of the Purchaser to accept and pay for Assets on each
Purchase Date (including the initial Purchase Date) from the Initial Sellers
shall be subject to the conditions precedent that on such Purchase Date:
(a) The following statements shall be true (and delivery by
Transmedia or the Initial Sellers of the Daily Report and the acceptance by
the Initial Sellers of the Purchase Price for any Assets on any Purchase
Date shall constitute a representation and warranty by Transmedia and the
Initial Sellers that on such Purchase Date such statements are true):
(i) the representations and warranties of Transmedia and the
Initial Sellers contained in Sections 4.01 and 4.02 shall be
true and correct in all material respects on and as of such
Purchase Date as though made on and as of such date (except
to the extent that such representations or warranties
expressly relate to an earlier date, in which case such
representations or warranties shall be true and correct in
all material respects as of such earlier date);
(ii) no Servicer Termination Event, Potential Purchase
Termination Event or Purchase Termination Event shall have
occurred and be continuing; and
(iii) all of the ESligibility Criteria shall have been
satisfied for all Purchased Assets.
-4-
(b) No material change shall have occurred after the initial
Purchase Date with respect to Transmedia's systems, computer programs,
related materials, computer tapes, disl~s and cassettes, procedures and
record-keeping relating to and required for the collection of the Purchased
Assets which makes them not sufficient and satisfactory in order to permit
the purchase and administration and collection of the Purchased Assets in
accordance with the terms and intent of this Agreement.
(c) Each Initial Seller shall have received and delivered a copy of
such other approvals, opinions or documents as the Purchaser may reasonably
request.
(d) Transmedia and the Initial Sellers shall have complied in all
material respects with all the covenants and satisfied all its obligations
under this Agreement required to be complied with or satisfied as of such
date.
(e) On or prior to the initial Purchase Date, Transmedia and the
Initial Sellers shall have delivered to the Purchaser:
(1) a copy of duly adopted resolutions of the Board of Directors
of Transmedia and the Initial Sellers, respectively, authorizing this
Agreement, the documents to be delivered hereunder and the
transactions contemplated hereby, certified by an officer of
Transmedia or the Initial Sellers, as applicable; and
(2) a duly executed certificate of an officer of each of
Transmedia and the Initial Sellers, certifying the names and
true signatures of the Person authorized on behalf of
Transmedia or the Initial Sellers, as applicable, to sign
this Agreement and the other Transaction Documents to be
delivered by Transmedia or the Initial Sellers.
(f) On or prior to each Purchase Date, the Initial Sellers shall have
delivered to the Purchaser:
(1) a supplement to ScheduleI hereto, identifying Assigned Restaurants
whose Credits and Contracts have not previously been sold to the
Purchasers and are being sold to the Purchaser on such Purchase Date;
(2) a supplement to Schedule III hereto, identifying the Cardmember
Agreements which are being partially assigned on such Purchase Date;
(3) a Daily Report substantially in the form of Exhibit B hereto,
which Daily Report will identify, among other things, (i) the
aggregate Contract Price of all existing and newly created Assets
relating to the Assets to be sold to the Purchaser by the Initial
Sellers on such date and not previously paid for by the
Purchaser, (ii) with respect to the initial Purchase Date, the
aggregate amount of unfunded liabilities under any Assets to be
sold to the Purchaser by the Initial Sellers on such date, (iii)
the aggregate Repurchase Amount for such date, if any, (iv) the
aggregate Returned Credits for such date, if any, (v) the
aggregate amount of cash to be paid to Initial
-5-
Sellers on such date, and (vi) the aggregate addition to the
principal amount of the Subordinated Note on such date;
(4) all Contract Files, in whatever form, including an original
counterpart of the Contracts constituting part of the Purchased
Assets; and
(5) a supplement to Schedule IY hereto, (which may be included
in the Daily Report) of all Contracts assigned to the Purchaser
on such Purchase Date.
SECTION 3.02. CONDITION PRECEDENT TO TRANSMEDIA'S AND THE ININAL SELLERS'
OBLIGANONS ON ININAL PURCHASE DATE. The obligations of Transmedia and the
Initial Sellers on the initial Purchase Date shall be subject to the condition
precedent that Transmedia and the Initial Sellers shall have received on or
before such Purchase Date the following, each (unless otherwise indicated) dated
the day of such Purchase Date and in form and substance satisfactory to
Transmedia and the Initial Sellers:
(a) a copy of duly adopted resolutions of the Board of Directors of
the Purchaser authorizing this Agreement, the documents to be delivered by
the Purchaser hereunder and the transactions contemplated hereby, certified
by the Secretary or Assistant Secretary of the Purchaser, and
(b) a duly executed certificate of the Secretary or Assistant
Secretary of the Purchaser certifying the names and true signatures of the
officers authorized on its behalf to sign this Agreement and the other
documents to be delivered by it hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE PARITES. The
Purchaser, with respect to itself; each Initial Seller, with respect to
itself and the Assets sold by such Initial Seller; and Transmedia, with
respect to itself, the Lnitial Sellers and all Assets, hereby each make
representations and warranties as follows:
(a) ORGANIZATION AND GOOD STANDING. It (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which the
failure to so qualify would have a material adverse effect on its condition
(financial or otherwise), operations, properties or prospects, (ii) has the
requisite corporate power and authority to execute, deliver and perform its
obligations under and effect the transactions contemplated by this
Agreement and (iii) has all requisite corporate power and authority and all
necessary leases and permits and the legal right tO own, pledge, mortgage
and operate its properties, and to conduct its business.
-6-
(b) Due Authorization and No Conflict. The execution, delivery and
perforTnance by it of this Agreement, and all instruments and documents to
which it is a party and to be delivered hereunder by it, and the
transactions contemplated hereby and thereby, (i) are within its corporate
powers, have been duly authorized by all necessary corporate action,
including the consent of stockholders and shareholders where required, and
do not (A) contravene its charter or by-laws, (B) violate any law or
regulation (including, without limitation, Regulations G, T, U or X) or any
order or decree of any court or governmental instrumentality the effect of
which would be to cause a Material Adverse Change, (C) conflict with or
result in the breach of, or constitute a default under, any indenture,
mortgage or deed of trust enforceable against it or any lease, agreement or
other instrument binding on or affecting it or any of its Subsidiaries or
any of its properties which conflict, breach or default would have or could
reasonably be expected to have a material adverse effect on the rights of
any of the Secured Parties under the Transaction Documents or (D) result in
or require the creation or imposition of any Lien upon any of its property,
including without limitation pursuant to any agreement or instrument
referred to in clause (C) above, EXCEPT as created or imposed hereunder or
under the Security Agreement, and no transaction contemplated hereby
requires compliance nn its part with any bulk sales act or similar law, and
(ii) do not require the consent, authorization by, approval of, notice to
or filing or registration with, any governmental body, agency, authority,
regulatory body or any other Person other than those which have been
obtained. This Agreement arid the other Transaction Documents to which it
is a party have been validly executed and delivered by it and this
Agreement and the other Transaction Documents to which it is a party
constitute its legal, valid and binding obligation, enforceable against it
in accordance with its terms subject to general principles of equity and
subject to bankruptcy, insolvency, reorganization, moratorium and similar
laws now or hereafter in effect relating to creditors' rights generally.
(c) NO PROCEEDINGS. There is no action, suit, investigation,
injunctive order or proceeding pending or, to its knowledge, threatened
against or affecting it or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) is reasonably likely to be
determined adversely to it and that, if so decided, would adversely affect
its condition (financial or otherwise), operations, properties or
prospects, or (ii) that purports to affect the legality, validity or
enforceability of this Agreement, any of the other Transaction Documents or
the transactions contemplated hereby or thereby.
SECTION 4.02. ADDINONAL REPRESENTATIONS OF TRANSMEDIA AND THE INITIAL
SELLERS. Each Initial Seller, with respect to itself and the Assets sold by
such Initial Seller, and Transmedia, with respect to itself, the Initial
Sellers, the Purchasers, and the Issuer and all Assets, hereby each make
representations and warranties as follows:
(a) Eligible Contract Assets. Each Asset sold by the Initial Sellers
hereunder is, at its respective Purchase Date, an Eligible Contract Asset.
-7-
(b) SALE OF ASSETS. On the initial Purchase Date and on each Purchase
Date thereafter, the applicable Initial Seller is the sole legal and
beneficial owner of the Assets being sold by it. Upon the sale of the
Purchased Assets by the Initial Seller, the Purchaser will become the sole
legal and beneficial owner of the Purchased Assets and the Collections with
respect thereto, free and clear of any Liens, and no effective financing
statement or other instrument similar in effect covering all or any part of
such Purchased Assets or Collections with respect thereto will at such time
be on file in any filing or recording office except such as have been filed
in favor of the Purchaser in accordance with this Agreement, in favor of
the Issuer in accordance with the Purchase and Servicing Agreement, in
favor of the Collateral Agent in accordance with the terms of the Security
Agreement or with respect to which the Collateral Agent, the Issuer and the
Purchaser have received effective UCC termination statements.
(c) FINANCIAL STATEMENTS. Any financial statements delivered pursuant
hereto or in connection with the transaction contemplated hereby, taken as
a whole and in light of the circumstances in which made, at the time so
furnished contained no untrue statement of a material fact and did not om~t
to state a material fact necessary to make such financial statements not
misleading.
(d) LOCATION OF OFFICE AND RECORDS. The chief place of business and
chief executive office of Transmedia and the Initial Sellers is located at
the address listed in Section 10.02, and the office where Transmedia and
the Initial Sellers keep all their original books, records and documents
evidencing Purchased Assets or the related Contracts is located at such
address.
(e) TRADE NAMES. Set forth in Schedule II (which shall be delivered
prior to the Closing Date) is a complete and accurate list of the trade
names of Transmedia and each of the Initial Sellers for the six-year period
preceding and including the date of this Agreement.
(f) FINANCIAL STATEMENTS. Transmedia has heretofore furnished to the
Purchaser copies of the audited consolidated financial statements of
Transmedia and its consolidated Subsidiaries for the fiscal year ended
September 30, 1995. Such financial statements present, and each financial
statement presented and delivered pursuant to Sections 12(e)(2) and (3) of
the Security Agreement will present, fairly in all material respects the
financial condition and results of operations of Transmedia and its
consolidated Subsidiaries as of such dates and for such periods; such
balance sheets and the notes thereto disclose all liabilities, direct or
contingent, of Transmedia and its consolidated Subsidiaries as of the dates
thereof required to be disclosed by GAAP and such financial statements were
prepared in accordance with GAAP applied on a consistent basis.
(g) ACCURACY OF INFORMATION. Each Daily Report and Settlement
Statement prepared by Transmedia on behalf of an Initial Seller, each
exhibit, financial statement, book, record, report or other document and
any other information
-8-
furnished at any time by Transmedia or an Initial Seller to the Purchaser
or in connection with this Agreement as of its date and as of the date so
furnished, will be accurate in all material respects and will not
contain any material misstatement of fact or omit to state a material fact
or any fact necessary to make the statements contained therein not
misleading.
(h) NO CONSENT. No action, authorization, qualification, license,
permit, consent or approval of, registration or filing with or any other
action by any Governmental Authority is or will be required in connection
with the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement by the
Initial Sellers, Transmedia, the Purchaser or the Issuer, except such as
have been made or obtained and are in full force and effect.
(i) UCC CLASSIFICATION. As to each Contract, each of the Credits, the
rights under the Contracts, the rights under the Cardmember Agreements to
authorize charges and recover payments from Cardmembers' Credit Card
Accounts in connection with the purchase of Meals by a Cardmember at an
Assigned Restaurant; rights in and to security agreements securing or
otherwise relating to any of the foregoing, the rights and interests of the
Purchaser under the Purchase Agreement and the rights and interests of the
Issuer in the Purchase and Servicing Agreement; and the tradenames, xxxxxx
xxxxx and trademarks transferred to TNI and licensed to the Issuer
constitute an "account" or "general intangible" within the meaning of
Section 9-106 of the UCC as in effect in the State of Florida.
(j) NO ADVERSE CHANGE. No Material Adverse Change in the business,
assets, operations, prospects or conditions, financial or otherwise, of the
Initial Sellers or of Transmedia and its Subsidiaries taken as a whole has
occurred from September 30, 1995.
(k) COMPUTER HARDWARE AND SOFTWARE. All of the computer hardware and
software necessary to collect the Assets is listed on Schedule VII.
(1) CONTRACT SCHEDULE. The Contract Schedule delivered to the
Purchaser pursuant to Section 3.01 lists all Contracts as of the initial
Purchase Date.
(m) NO DEFAULTS. No Potential Purchase Termination Event, Purchase
Termination Event, Servicer Termination Event, Early Amortization Event or
Potential Early Amortization Event has occurred or is occurring.
(n) USE OF PROCEEDS. None of the transactions contemplated herein
(including, without limitation thereof, the use of the proceeds from the
sale of the Purchased Assets) will violate or result in a violation of
Section 7 of the Securities Exchange Act of 1934, as amended, or any
regulations issued pursuant thereto, including, without limitation.
Regulation U.
-9-
(o) CAPITAL OF THE INITIAL SELLERS AND TRANSMEDIA. Each of the Initial
Sellers and Transmedia is solvent and has adequate capital for its business
and undertakings and will be able to pay its debts as they become due.
(p) RESTRICTIONS ON THE INITIAL SELLERS AND TRANSMEDIA. None of the
Initial Sellers or Transmedia is a party to any contract or agreement, or
subject to any charter or other corporate restrictions, which, individually
or in the aggregate, matenally and adversely affects its business.
(q) NO OTHER EXISTING CREDITS. Except for the Initial Sellers and the
Purchaser, neither Transmedia nor any Subsidiary of Transmedia has acquired
any Credits from any of the Assigned Restaurants.
(r) NO OTHER AGREEMENTS WITH CARDMEMBERS. Except for the rights of the
Initial Sellers (certain of which rights are being transferred to the
Purchaser hereunder), neither Transmedia nor any Subsidiary of Transmedia
has any rights under any agreements with any Cardmember to authorize
charges to and recover payments from Cardmembers' Credit Card Accounts in
connection with the purchase of Meals by any Cardmember at any Assigned
Restaurant.
(s) NO CONTRACTS WITH AFFILIATES. No Restaurant is an Affiliate of the
Purchaser, Transmedia or the Issuer or any officer or director of
Transmedia or any Affiliate of Transmedia.
(t) ALL CONTRACTS OF ASSIGNED RESTAURANTS SOLD TO ISSUER. On each
Purchase Date, the Assets included in making the calculations set forth in
the Daily Report includes all unused Credits purchased by any of
Transmedia's Subsidiaries from each of the Assigned Restaurants on or prior
to such Purchase Date.
(u) FAIR CONSIDERATION. The consideration to be received by the
Initial Sellers, in exchange for each transfer of Contracts and other
Assets (including the right to receive all Collections due or to become due
thereunder or in respect thereto), is fair consideration having value
reasonably equivalent to or in excess of the value of the assets being
transferred by it.
(v) Transmedia and the Initial Sellers have not concealed and will not
conceal from any interested party any transfers contemplated by the
Transactions. Transmedia and the Initial Sellers have not themselves
removed or concealed, and will not themselves remove or conceal, from
creditors any of their assets and have not participated and will not
participate in removing or concealing the assets of any other entity. The
Initial Sellers do not transfer the Asset or the Marks with the intent to
hinder, delay or defraud any person or entity.
(w) The sole principal business of Transmedia and the Initial Sellers
is not primarily to (i) acquire and hold the Assets and (ii) issue and pay
the Notes.
-10-
(x) Transmedia and the Initial Sellers can and do independently
conduct their respective business activities of the Issuer and the
Purchaser.
(y) Transmedia and the Initial Sellers are not primarily or
secondarily liable for the Issuer's or the Purchaser's debts, whether by
guarantee, agreement to purchase assets, agreement to maintain the solvency
of the Issuer or the Purchaser or otherwise, and neither the Issuer nor the
Purchaser is primarily or secondarily liable for Transmedia's or any
Affiliate of Transmedia's debts, whether by guarantee, agreement to
purchase assets, agreement to maintain the solvency of Transmedia or any
Affiliate of Transmedia's or otherwise.
(z) Neither the Issuer nor the Purchaser finances the ongoing
operations of Transmedia or any of its Affiliates, and without limiting the
generality of the foregoing, neither pays or is liable to pay the salaries,
expenses or losses of Transmedia or any of its Affiliates, and Transmedia
and the Initial Sellers do not finance the ongoing operations of the Issuer
or the Purchase, and without limiting the foregoing, do not pay and are not
liable to pay salaries, expenses or losses of the Issuer or the Purchaser,
except for advances as provided in Section 6.05 of the Purchase and
Senicing Agreement and certain indemnities set forth in Sections 8.01 and
8.02 of the Purchase and Servicing Agreement.
(aa) Transmedia, the Initial Sellers, the Purchaser and the Issuer do
not and will not maintain joint bank or depository accounts to which any of
the other entities has independent access.
(ab) Transmedia, the Initial Sellers, the Purchaser and the Issuer do
not and will not pool or commingle any of their respective funds with the
funds of any of the other entities, and their individual assets are and
will be segregated.
(ac) Transmedia and the Initial Sellers and their respective assets
are and will be maintained in such a manner that it will not be difficult
or costly to segregate, ascertain or otherwise identify their respective
individual assets.
(ad) Transmedia's and the Initial Sellers' books of account and
official corporate records have been and will be separately maintained from
those of the Issuer, the Purchaser, and the Issuer's books of account and
official corporate records will be separately maintained from those of
Transmedia or any of Transmedia's Affiliates.
(ae) The resolutions, agreements and other instruments underlying the
Transactions will be continuously maintained by Transmedia and the Initial
Sellers as official corporate records.
(af) Transmedia and the Initial Sellers do not refer and have not
referred to the Issuer or the Purchaser as a "department" or "division" of
Transmedia or any Affiliate of Transmedia.
-11-
(ag) The creditors of the Issuer and the Purchaser are not
substantially similar to the creditors of Transmedia or the Initial
Sellers.
(ah) Transmedia and the Initial Sellers have not taken any action to
effect a merger or a consolidation of the Issuer or the Purchaser with
Transmedia or the Initial Sellers.
(ai) The Issuer, the Purchaser, Transmedia and the Initial Sellers all
have separate telephone numbers and mailing addresses and do not occupy
common office space.
(aj) All transactions between or among Transmedia, the Initial
Sellers, the Purchaser and the Issuer are and will be fully and separately
documented and will reflect arm's-length transactions. These transactions
are and will be undertaken in good faith by the respective entities for
their BONA FIDE business purposes.
(ak) Transmedia and the Initial Sellers intend and expect that all the
transfers of the Assets will occur only pursuant to the Transaction
Documents, which fully document the relationships and the expectations of
the parties thereto. The Transactions reflect BONA FIDE transactions to be
undertaken in good faith for legitimate business purposes.
(al) Transmedia and the Initial Sellers acknowledge that the Purchaser
is entering into the Transactions in reliance on Transmedia's, the Initial
Sellers' and the Issuer's identities as separate, independent and distinct
legal entities, and that the Noteholders are entering into the Transactions
based on the separate legal identity, and limited purpose nature, of the
Issuer and the Purchaser.
(am) Each of Transmedia and the Initial Sellers has complied with all
formalities required by Delaware law, including, without limitation, the
holding of board of directors' meetings and stockholders' meetings.
(an) Each of Transmedia and the Initial Sellers has and will conduct
its business solely in its own respective name and in such a separate
manner as not to mislead others with whom it is dealing as to its identity.
Likewise, all oral and written communications, including, without
limitation, letters, invoices, purchase orders, contracts, statements, and
applications relating to Transmedia or the Initial Sellers are made solely
in the name of Transmedia or the Initial Sellers, respectively, and not in
tne name of the Issuer or the Purchaser.
(ao) Except as contemplated by the Transaction Documents, Transmedia
and the Initial Sellers cannot, do not and will not exercise control over
the decisions of the Issuer or the Purchaser with respect to its daily
business and affairs. Neither the Issuer nor the Purchaser can or will
exercise control over the decisions of Transmedia or the Initial Sellers
with respect to their daily business and affairs.
-12-
(ap) Each of Transmedia, the Initial Sellers and the Purchaser do not
and will not make any payments to each other in connection with the
Contract Assets or the Tradenames, except pursuant to the Transaction
Documents.
(aq) Each of Transmedia, the Initial Sellers and the Purchaser do not
and will not receive any payments in connection with the Contract Assets or
the Tradenames, except pursuant to the Transaction Documents.
(ar) The Initial Sellers do not and will not transfer the Assets or
the Marks with the intent to hinder, delay or defraud any person or entity.
(as) Each of Transmedia and the Initial Sellers has not made and will
not make any untrue statement of a material fact or omitted to state a
material fact necessary to make any statement not misleading and has not
provided any document to the Initial Purchasers or the Rating Agency which
contains any untrue statement of material fact or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(at) No Contract represents a direct obligation (including
participations or certificates of beneficial ownership therein) that is
principally secured, directly or indirectly, by an interest in real
property.
ARTICLE V
COVENANTS
SECTION 5.01. AFFIRMATIVE COVENANTS OF TRANSMEDIA AND THE INITIAL SELLERS.
So long as the Purchaser, the Issuer or the Collateral Agent shall have any
interest in any Purchased Assets, each of the Initial Sellers and Transmedia
shall, unless the Purchaser, the Issuer and the Collateral Agent otherwise
consents in writing:
(a) FINANCIAL STATEMENTS, REPORTS, ETC. Deliver or cause to be
delivered to the Purchaser (with respect to the Initial Sellers, delivery
by Transmedia will be deemed to satisfy the delivery requirement):
(i) as soon as possible but not later than 90 days after the end
of each fiscal year, Transmedia's consolidated balance sheet and
related statements of income and cash flows, showing the financial
condition of Transmedia and its consolidated Subsidiaries as of the
close of such fiscal year and the results of its operations and the
operations of its consolidated Subsidiaries during such year, all
audited by independent public accountants of recognized national
standing reasonably acceptable to the Purchaser and its assignees
(including the Trustee, the Collateral Agent and the Issuer) and
accompanied by an opinion of such accountants (which shall not be
qualified in any material respect other than as may be approved by
the Purchaser) to the effect that such consolidated financial
statements fairly present the financial condition and results of
operations of
-13-
Transmedia and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied;
(ii) as soon as possible but not later than 45 days after the
end of each of the first three fiscal quarters, Transmedia's unaudited
consolidated balance sheets and related statements of income and cash
flows, showing the financial condition of Transmedia and its
consolidated Subsidiaries as of the close of such fiscal quarter and
the results of its operations and the operations of its consolidated
Subsidiaries during such fiscal quarter and the then elapsed portion
of such fiscal year, all certif~ed by a Financial Officer of
Transmedia as fairly presenting the financial condition and results of
operations of it and its consolidated Subsidiaries on a consolidated
and consolidating basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments without GAAP footnotes;
(iii) concurrently with any delivery of financial statements
under (i) and (ii) above, a certificate of the President, any Vice
President and any Financial Officer of Transmedia and of each of the
Initial Sellers certifying such statements and certifying that no
Purchase Termination Event or Potential Purchase Termination Event has
occurred, or, if such a Purchase Termination Event or Potential
Purchase Termination Event has occurred, specifying the nature and
extent thereof and any corrective action taken or proposed to be taken
with respect thereto;
(iv) concurrently with any delivery of financial statements under
(i) and (ii) above, a list of the Cardmember Rebate options together
with the number of Cardmembers entitled to each Cardmember Rebate;
(v) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication,
if any, sent to the stockholders of Transmedia generally and copies of
all annual, regular, periodic and special reports and registration
statements which Transmedia may file or be required to file with the
Securities and Exchange Commission under Sections 13 and 15(d) of the
Securities Exchange Act of 1934;
(vi) promptly after the commencement thereof, notice of any
action, suit and proceeding before any court or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, against Transmedia or any of its Subsidiaries,
(A) which, if determined adversely to Transmedia or such Subsidiary,
would have a Materially Adverse Effect on any of them, or (B)
commenced by any creditor or lessor under any written credit agreement
with respect to borrowed money or material lease which asserts a
default thereunder on the part of Transmedia or any of its
Subsidiaries;
(vii) promptly upon the filing thereof and at any time upon the
reasonable request of the Purchaser, the Trustee, the Collateral Agent
or any
-14-
Noteholder, permit such Person the opportunity to review copies of all
reports, including ~nual reports, and notices which Transmedia or any
Subsidiary f~les with or receives from the PBGC or the U.S. Department
of Labor under ERISA; and as soon as practicable and in any event
within fifteen (15) days after Transmedia or any of its Subsidiaries
knows or has reason to know that any Reportable Event or Prohibited
Transaction has occurred with respect to any Pension Plan or that the
PBGC or Transmedia or any such Subsidiary has instituted or will
institute proceedings under Title IV of ERISA to terminate any Pension
Plan, Transmedia will deliver to the Purchaser, the Trustee, the
Collateral Agent and each Noteholder a certificate of a President, any
Vice President or any Financial Officer setting forth details as to
such Reportable Event or Prohibited Transaction or Pension Plan
termination and the action it proposes to take with respect thereto;
(viii) promptly upon receipt thereof, copies of any reports or
management letters relating to the internal financial controls and
procedures delivered to Transmedia or any of its Subsidiaries by any
independent certified public accountant in connection with examination
of the financial statements of Transmedia or any such Subsidiary; and
(ix) such additional information as the Purchaser, the Trustee,
the Collateral Agent or any Noteholder may reasonably request
concerning Transmedia and its Subsidiaries.
(b) COMPLIANCE WITH LAWS, ETC. Comply in all material respects with
all applicable laws, rules, regulations, directions of any Governmental
Authority and orders applicable to the Purchased Assets, including, without
limitation, rules and regulations relating to truth in lending, fair credit
billing, fair credit reporting, equal credit-opportunity, fair debt
collection practices and privacy, where failure to so comply could
reasonably be expected to have an adverse impact on the amount of
Collections thereunder; PROVIDED, HOWEVER, that it may contest any act,
regulation, order, decree or direction in any reasonable manner which
shall~not materially and adversely affect the rights of the Purchaser in
the Purchased Assets. It will comply, in all material respects, with its
obligations under the Contracts with Restaurants relating to the Purchased
Assets.
(c) PRESERVATION OF CORPORATE EXISTENCE. Do or cause to be done all
things necessary (i) to preserve, renew and keep in full force and effect
its legal existence and (ii) to maintain such legal existence separate from
that of the Purchaser.
(d) INSPECTION RIGHTS. At any reasonable time during normal business
hours and from time to time permit (i)(A) the Purchaser or any of its
agents, representatives or assignees pursuant to the Security Agreement
(including the Trustee, the Collateral Agent or any Noteholder and the
Issuer); to examine and make copies of and abstracts from the records,
books of account and documents (including, without limitation, computer
tapes and disks) of Transmedia and the Initial Sellers
-15-
relating to the Purchased Assets hereunder (PROVIDED that so long as
no Early Amortization Event or Potential Early Amortization Event has
occurred and is continuing, such assignees shall give at least two Business
Days notice prior to any examination) and (B) the Purchaser, the Collateral
Agent or the Trustee or any Noteholder or any of their agents or
representatives following the termination of the appointment of Transmedia
as Servicer with respect to the Purchased Assets, to be present at the
offices and properties of Transmedia and the Initial Sellers to administer
and control the collection of the Purchased Assets and (ii) the Purchaser,
or any of its agents, representatives or assignees pursuant to the Security
Agreement (including the Trustee, the Collateral Agent or any Noteholder
and the Issuer), to visit the properties of Transmedia and the Initial
Sellers for the purpose of determ~n~ng compliance under the Transaction
Documents and examining such records, books of account and documents, and
to discuss the affairs, finances and accounts of Transmedia and the Initial
Sellers relating to the Purchased Assets or Transmedia's or an Initial
Seller's performance hereunder with any of its senior officers or directors
and with its independent certified public accountants and consultants
(PROVIDED that so long as no Early Amortization Event or Potential Early
Amo tization Event has occurred and is continuing, such assignees shall
give at least two Business Days' notice prior to any visit).
(e) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Maintain and implement,
or cause to be maintained and implemented, administrative and operating
procedures reasonably necessary or advisable for the transfer,
administration, servicing and collection of amounts owing on all Purchased
Assets, and, until delivery to the Purchaser, keep and maintain, or cause
to be kept and maintained, all documents, books, records and other
information reasonably necessary or advisable for the transfer,
administration, servicing and collection of amounts owing on all such
Purchased Assets.
(f) LOCATION OF RECORDS. Keep its chief place of business and chief
executive office and the offices where it keeps the records concerning
Purchased Assets and all underlying Contracts (and all original documents
relating thereto) at the location specified in Section 4.02(d), or upon 30
days' prior written notice to the Purchaser, at such other locations in a
jurisdiction where all action required by Section 5.01(n) shall have been
taken and completed and be in full force and effect.
(g) COMPUTER FILES. (i) Retain the electronic ledger used by
Transmedia or the Initial Sellers as a master record of the Purchased
Assets and copies of all documents relating to the Purchased Assets as
custodian for the Purchaser and other Persons with interests in the
Purchased Assets and (ii) clearly and conspicuously xxxx or cause to be
marked with a legend describing the Purchaser's and Collateral Agent's
interest, in form and substance reasonably satisfactory to the Purchaser,
all computer tapes or disks and use its best efforts to xxxx all books,
records, and credit files pertaining to the Related Contracts and all file
cabinets or other storage facilities where information is maintained
pertaining to the Purchased Assets to the effect that interests in the
Purchased Assets and the Related Contracts have been conveyed to the
-16-
Purchaser and then to the Issuer and that the Collateral Agent has a
security interest in such Purchased Assets for the benefit of the Secured
Parties pursuant to the Security Agreement.
(h) CONTRACTS AND RESTAURANT GUIDELINES. Comply with and perform its
obligations in accordance with its Restaurant Guidelines, except insofar as
any failure so to comply or perform would not materially and adversely
affect the Collections or the rights of the Purchaser, the Issuer, the
Collateral Agent or the Noteholders, or if such failure to comply is
necessary under any Requirement of Law and which would materially and
adversely affect the Collections or the rights of the Purchaser, the
Issuer, the Collateral Agent or the Noteholders. Each of the Initial
Sellers and Transmedia agrees that prior to making any material change in
its Restaurant Guidelines in effect on the Closing Date, it shall give 30
days' written notice to the Rating Agency, the Purchaser, the Issuer, the
Trustee and the Noteholders of any such changes; PROVIDED, HOWEVER, that in
the case of any material change in its Restaurant Guidelines made pursuant
to any Requirement of Law as to which it is unable to give 30 days' written
notice, Transmedia and the Initial Sellers shall give written notice to the
Purchaser, the Issuer, the Trustee and the Noteholders of such changes as
soon as reasonably practicable prior to the implementation of such changes.
If the Initial Sellers change the Restaurant Guidelines to lengthen the
time (currently six months) in which Credits from any Restaurant are
expected to be used, such change shall be deemed to be a material adverse
change. In the event that any such changes (except changes that are
necessary under any Requirement of Law), could reasonably be expected to
materially and adversely affect the rights of the Purchaser, then such
changes shall not become effective without the prior consent of the
Majority Noteholders. Any notice regarding changes to the Restaurant
Guidelines shall state in reasonable detail the reasons the changes will
have such effect.
(i) DAILY REPORTS AND SETTLEMENT STATEMENTS. Furnish, or if Transmedia
is not the Servicer, provide such information as may be required by the
Servicer tO furnish, the Purchaser with the Daily Reports and Settlement
Statements in accordance with Sections 6.01 and 6.02 and financial
statements, cash flow reports and other records that show the performance
of the Purchased Assets and such other reports as may be reasonably
requested by the Purchaser or any Noteholder. With respect to the Initial
Sellers, delivery by Transmedia will be deemed to satisfy the delivery
requirement.
(j) INSURANCE. Except to the extent failure to do so neither causes
nor could reasonably be expected to cause a Material Adverse Change with
respect to Transmedia or the Initial Sellers, (i) keep its insurable
properties adequately insured at all times by financially sound and
responsible insurers; maintain such other insurance, to such extent and
against such risks, including fire and other rislcs insured against by
extended coverage, as is customary with companies of the same or similar
size in the same or similar businesses; (ii) maintain in full force and
effect public liability insurance against claims for personal injury or
death or property darnage occurring upon, in, about or in connection with
the use of any properties owned,
-17-
occupied or controlled by it or any Subsidiary, as the case may be, in
such amounts and with such deductibles as are customary with companies of
the same or similar size in the same or similar businesses and in the same
geographic area; and (iii) maintain such other insurance as may be required
by law; and will cause each of its Subsidiaries so to do.
(k) OBLIGATIONS AND TAXES. (i) Pay any material obligations
enforceable against or binding on it promptly and in accordance with the
terms thereof and (ii) pay and discharge promptly when due all sales tax
and all material taxes, assessments and governmental charges or levies
imposed upon, and enforceable against or binding on, it or upon its income
or profits or in respect of its property, before the same shall become in
default, as well as all material lawful claims enforceable against or
binding on it for labor, materials and supplies or otherwise which, if
unpaid, might become a Lien or charge upon such properties or any part
thereof; PROVIDED, however, that it shall not be required to pay and
discharge or to cause to be paid and discharged any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and adequate resenes
with respect thereto shall have been set aside on its books, and such
contest shall not involve any risk of loss of any of the Assets.
(1) FURNISHING COPIES, ETC. Furnish to the Purchaser (i) within five
Business Days of the Purchaser's request, a certificate of the President,
any Vice President or any Financial Officer of Transmedia certifying, as of
the date thereof, that no Purchase Termination Event or Potential Purchase
Termination Event referred to in Section 7.01(b) or otherwise has occurred
and is continuing, and setting forth the computations used by such Person
in making such determination; (ii) as soon as possible and in any event
within five days after the occurrence of any Purchase Termination Event or
Potential Purchase Termination Event, a statement of the President, any
Vice President or any Financial Officer of Transmedia setting forth details
of such Purchase Termination Event or Potential Purchase Termination Event
and the action that Transmedia proposes to take or has taken with respect
thereto; and (iii) promptly following request therefor, such other
information, documents, records or reports with respect to the Purchased
Assets, the Cardmembers (to the extent permitted by law), the Restaurants
or the conditions or operations, financial or otherwise, of Transmedia as
the Purchaser may from time to time reasonably request.
(m) OBLIGATIONS WITH RESPECT TO PURCHASED ASSETS. Duly fulfill all
obligations on its part to be fulfilled under or in connection with each
Contract, except where the failure to fulfill such obligations would not
materially and adversely affect the Collections or the rights of the
Purchaser, the Issuer, the Trustee, the Collateral Agent or the Noteholders
or if such failure is necessary under any Requirement of Law, and do
nothing to impair the rights of the Purchaser, the Issuer, the Trustee, the
Collateral Agent or the Noteholders in the Purchased Assets or under the
Contracts.
(n) CONTINUING COMPLIANCE WITH THE UCC. At its expense, preserve,
continue and maintain or cause to be preserved, continued and maintained
the Purchaser's valid
-18-
and properly protected and perfected title to all Purchased Assets,
including, without limitation, filing or recording UCC financing statements
in each relevant jurisdiction.
(o) FURTHER ACTTON EVIDENCING PURCHASES. At the Initial Sellers'
expense, promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable
or that the Purchaser may reasonably request, in order to protect or more
fully evidence the Purchaser's right, title and interest in the Purchased
Assets and its rights under the Contracts with respect thereto, or to
enable the Purchaser to exercise or enforce any such rights. Without
limiting the generality of the foregoing, (i) Transmedia and the Initial
Sellers will upon the request of the Purchaser execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices as may be necessary or, in the opinion of the
Purchaser, advisable, (ii) Transmedia and the Initial Sellers hereby
irrevocably authorize the Purchaser and each of its assignees (including
the Issuer, the Trustee and the Collateral Agent) to file one or more
f~nancing or continuation statements, and amendments thereto, relatin,, to
all or any part of the Purchased Assets sold or to be sold by the Initial
Sellers, or the underlying Contracts with respect thereto, without the
signature of Transmedia or the Initial Sellers, (iii) if Transmedia or an
Initial Seller fails to perform any of its agreements or obligations under
this Agreement, the Purchaser may (but shall not be required to) perform,
or cause performance of, such agreements or obligations, and the costs and
expenses of the Purchaser incurred in connection therewith shall be payable
by Transmedia and (iv) each of the Initial Sellers and Transmedia agrees
that from time to time, at its expense, it will (A) indicate on its books
and records that the Purchased Assets has been sold and assigned to the
Purchaser and further sold and assigned by the Purchaser to the Issuer, and
pledged by the Issuer to the Collateral Agent, and provide to the
Purchaser, upon request, copies of such records, (B) obtain the agreement
of any Person having a Lien in and to any Purchased Assets owned by
Transmedia or an Initial Seller to release such Lien upon the transfer of
any such Purchased Assets to the Purchaser and (C) notify the Purchaser
promptly after obtaining knowledge that any of the Purchased Assets has
become subject to a Lien other than any Lien created or imposed under the
Transaction Documents.
(p) SERVICING FACILITY; STORAGE FACILITY. Maintain its facility from
which it serYices the Assets in its present condition, ordinary wear and
tear excepted, or such other facility of similar quality, security and
safety as Transmedia may select from time to time. Transmedia or the
Initial Sellers shall make all property tax payments, lease payments and
all other payments with respect to such facility, including any
indebtedness secured by such facility, whether Transmedia shall be the
Servicer or a Successor Servicer shall have been appointed. Transmedia and
the Initial Sellers shall (i) ensure that any Successor Servicer shall have
complete and unrestricted access subject to paragraph (d) of this Section
5.01, at Transmedia's expense, tO such facility and all computers and other
systems relating to the servicing of the Assets, (ii) use its best efforts
tO retain the employees based at such facility to provide assistance to any
Successor Servicer after the appointment of such Successor Servicer and
(iii) continue to store on a daily basis all bacic-up files relating to the
Assets and the servicing of the
-19-
Assets at Xxxxx Xxxxx Associates, Ltd. 000 Xxxxxx Xxxxxx, Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000, or such other storage facility of similar
quality, security and safety as Transmedia may select from time to time, in
the case of each of clauses (i), (ii) and (iii) until the earlier of (A)
the indefeasible payment in full in cash of the principal and interest of
the Notes, (B) the receipt by the Purchaser of all Collections in respect
of all Assets and (C) the Successor Senicer being able to perform its
obligations under this Agreement without the assistance of Transmedia .
(q) TRADE NAMES. Promptly notify the Purchaser of any new trade names
of Transmedia or the Initial Sellers.
(r) SALE TREATMENT. Perform the transactions contemplated hereby in a
manner that is consistent with the sale of the Purchased Assets to the
Purchaser under applicable law (including, without limitation, the Federal
Bankruptcy Code) other than federal income tax law.
SECTION 5.02. NEGATIVE COVENANTS OF TRANSMEDIA AND THE INITIAL SELLERS. So
long as the Purchaser, the Issuer or the Collateral Agent shall have any
interest in any Purchased Assets, each of the Initial Sellers and Transmedia
shall not, unless the Purchaser, the Issuer and the Collateral Agent otherwise
consents in writing:
(a) LIENS. Except as otherwise herein provided, sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer
to exist any Lien upon or with respect to, any Assets or assign any right
to receive proceeds in respect thereof EXCEPT for Liens created or imposed
hereunder or under the Transaction Documents.
(b) CHANGE IN BUSINESS. Make any matenal change in the type of
business it conducts on the date hereof.
(c) CHANGE IN PAYMENT INSTRUCTIONS. Instruct Restaurants or Credit
Card Companies to make any payments with respect to Purchased Assets other
than as described in Article VI of the Purchase and Servicing Agreement or
the Security Agreement.
(d) CHANGE IN NAME. Change its name, identity or corporate structure
in any manner which would, could or might make any financing statement or
continuation statement relating to this Agreement or the Security
Agreement, seriously misleading within the meaning of Section 9~02(7) of
the UCC as in effect in the applicable jurisdiction.
(e) MODIFICATION OF LEDGER. Delete or otherwise modify any marking
on the electronic ledger referred to in Section 5.01(g).
(f) EXTENSION OR AMENDMENT OF ASSETS. Extend, amend or otherwise
modify, or attempt or purport to extend, amend or otherwise modify, the
terms of any
-20-
Purchased Assets, or amend or otherwise modify or waive any term or
condition of any Contract with respect thereto other than in accordance
with its Restaurant Guidelines in accordance with any Requirement of Law.
(g) PRIORCTY OF COLLECTION. Collect any payment for its own account,
or for the account of any Person other than the Purchaser or its assigns,
arising under or out of any Contract with an Assigned Restaurant while the
Credits to be provided by that Restaurant are a part of the Purchased
Assets.
(h) Without the prior written consent of the Purchaser and its
assignees (including the Collateral Agent) and the Rating Agency, sell on
any Purchase: Date after the Closing Date any Contract relating to any
Restaurant not designated as of the Closing Date as an Assigned Restaurant
(an "ADDED RESTAURANT CONTRACT") if (i) during any calendar quarter, such
sale would cause the aggregate Contract Price (calculated as of the
Purchase Date applicable for each Added Restaurant Contract) of all such
Added Restaurant Contracts sold to the Purchaser during such calendar
quarter to exceed 10% of the Net Note Principal Amount on such Purchase
Date and (ii) during any calendar year, such sale would cause the aggregate
Contract Price (calculated as of the Purchase Date applicable for each
Added Restaurant Contract) of all such Added Restaurant Contracts sold to
the Purchaser during such calendar year to exceed 25% of the Net Note
Principal Amount on such Purchase Date.
ARTICLE VI
ADMINISTRATION
SECTION 6.01. DAILY REPORT. (a) On each Business Day, Transmedia shall
prepare a Daily Report in substantially the form attached hereto as Exhibit B.
The Daily Report shall report for the Applicable Day, among other things, the
dollar amount of Assets created since the preceding Daily Report, the dollar
amount of Collections received on the Applicable Day, the Borrowing Base, the
amount of Available Cash, and a current list of Purchased Contracts.
(b) Transmedia shall deliver to the Purchaser the Daily Report, which shall
be deemed to have been certified by the President, any Vice President or any
Financial Officer of each of Transmedia and the Initial Sellers, by 12:00 Noon,
New York time, on each Business Day with respect to activity in the Purchased
Assets for the Applicable Day covered by such Daily Report (or, in the case of a
Daily Report delivered on a day following a Saturday, Sunday or other
non-Business Day, the aggregate activity for the preceding Business Day and such
non-Business Days); PROVIDED, HOWEVER, that if a "system failure" or other
similar technical failure shall occur in the operations of Transmedia that
produce data included in the Daily Report, Transmedia shall use its best efforts
to recreate Daily Reports for each Applicable Day missed due to a "system
failure" or, if Transmedia is unable to recreate such Daily Reports, Transmedia
shall prepare a composite Daily Report for each such missed Applicable Day and,
in either case, such Daily Reports shall be telecopied to the
-21-
Purchaser within two Business Days of the date such Daily Report(s) were
otherwise required to be prepared and telecopied.
(c) The Purchaser and Transmedia agree that Transmedia shall prepare each
Daily Report as promptly as possible each Business Day on the basis of the
"pre-audit" sales and collections figures transmitted the previous day to
Transmedia's central computer processing center.
(d) Upon discovery of any error by the Purchaser in any Daily Report, the
Purchaser and Transmedia shall confer and shall agree upon any necessary
adjustments to correct any such errors.
SECTION 6.02. SETTLEMENT STATEMENT. On each Settlement Date, Transmedia
shall, prior to 12:00 Noon, New York time, deliver to the Purchaser the
Settlement Statement for the related Settlement Period certified by the
President, any Vice President or any Financial Officer; PROVIDED, HOWEVER, that
if a "system failure" or other similar technical failure shall occur in the
operations of Transmedia that produce data included in the Settlement Statement,
a Settlement Statement containing all information for each day required to be
included therein shall be prepared and delivered to the Purchaser within two
Business Days of the date such Settlement Statement was otherwise required to be
prepared and delivered. On each Settlement Date, the Initial Sellers shall
deliver to the Purchaser and the Collateral Agent confirmation of the assignment
of the Purchased Assets transferred in the prior month, including a list of
Contracts and Cardmember Agreements, signed by each of the Initial Sellers.
SECTION 6.03. TERMINATION. The Initial Sellers' obligation to sell Assets
under this Agreement shall terminate on the date (the "PURCHASE TERMINATION
DATE") which is the earlier of (i) the Issuer Final Termination or (ii) the date
on which the Purchaser's obligation to purchase Assets shall terminate pursuant
to Section 7.01.
SECTION 6.04. GRANT OF LICENSE TO USE SOFTWARE. For the purpose of enabling
the Purchaser or its assignees to perform the functions of senicing and
collecting the Purchased Assets, each of Transmedia and the Initial Sellers
hereby (i) grants to the Purchaser and its current and future affiliates a
perpetual, irrevocable, royalty-free license to use all computer software owned
by the Initial Sellers or any of their Affiliates necessary or desirable to
collect the Assets including, but not limited to the software identified on
Schedule VII to identify, promote, manufacture, provide and sell goods and
services, and provide related services in connection with servicing the
Purchased Assets; and (ii) agrees to use its best efforts to assist the
Purchaser to arrange licensing agreements with all software vendors and other
applicable persons in a manner and to the extent reasonably appropriate to
effectuate the servicing of the Purchased Assets. The Purchaser may assign,
license, pledge, grant or otherwise encumber or transfer (including, without
limitation by means of change of control) the license granted in this Section
6.04, or all or part of its rights under the license granted in this Section
6.04, to a joint venulre of which the Purchaser is a party, a related or
affiliated company, a subsidiary, or a third party with which it may merge or
that
-22-
acquires all or substantially all of the assets of the Purchaser, without the
prior, written consent of Transmedia or the Initial Sellers.
ARTICLE VII
PURCHASE TERMINATION EVENTS
SECTION 7.01. PURCHASE TERMINATION EVENTS. If any of the following events
(each, a "PURCHASE TERMINATION EVENT") shall occur and be continuing:
(a) any written representation or warranty made or deemed made or any
oral representation made prior to the Closing Date by or on behalf of
Transmedia or an Initial Seller under or in connection with this Agreement
or any Daily Report, Cash Allocation Report or Settlement Statement or
other information or report delivered by Transmedia or an Initial Seller
pursuant hereto shall prove to have been false or incorrect in any material
respect when made or deemed made, except with respect to the representation
and warranty set forth in Section 4.02(a) with respect to any Purchased
Assets so long as Transmedia or the Initial Seller has complied with its
obligations in respect of such Purchased Assets pursuant to Section 2.04;
(b) Transmedia or an Initial Seller shall have failed to (i) perform
or observe any term, covenant or agreement contained in Subsection 5.01(c),
5.01(f), 5.01(g), 5.01(h), 5.01(i), 5.01(k), 5.01(1), 5.01(m), 5.01(n),
5.01(o) or 5.01(p), Section 5.02 or Section 7.02, or (ii) make any payment
or deposit to be made by it hereunder when the same becomes due and
payable;
(c) Transmedia or an Initial Seller shall have failed to perform or
observe any other term, covenant or agreement contained in this Agreement
on its part to be performed or observed and any such failure shall have
remained unremedied for ten days following notification by the Purchaser,
the Servicer or the Trustee or Transmedia or either Initial Seller
otherwise becoming aware thereof;
(d) the Indenture or the Security Agreement shall have ceased to be in
full force and effect;
(e) an Amortization Commencement Date, Early Amortization Event or
Potential Early Amortization Event shall have occurred;
(f) Transmedia shall have failed to make any payment or deposit to be
made by its hereunder when the same becomes due and payable; or
(g) any Purchase Termination Event under the Purchase and Servicing
Agreement;
then, and in any such event, the Purchaser may, or, in the case of an event set
forth in clause (e) above, shall, by notice to Transmedia and the Initial
Sellers declare its obligation
-23-
to acquire Assets from the Initial Sellers to be terminated, whereupon such
obligation shall forthwith be terminated.
SECTION 7.02. REMEDIES. If a Purchase Termination Event has occurred and
is continuing, provided the Purchaser provides Transmedia and the Initial
Sellers with ten Business Days' notice prior to taking any action set forth in
clause (c)(ii) below:
(a) The Purchaser (and its assignees) shall have all of the rights and
remedies provided to a secured creditor or a purchaser of accounts under
the UCC as in effect in the applicable jurisdiction or other applicable law
in respect thereof.
(b) The Purchaser (and its assignees) may at any time (i) notify the
respective Restaurants and Credit Card Companies of the Purchaser's
ownership (and subsequent assignment) of the Purchased Assets and may
direct that payment of all amounts due or to become due under the Purchased
Assets be made directly to the Purchaser or its assignee or (ii) give
notice, or require that Transmedia and the Initial Sellers, at Transmedia's
expense, give notice of such ownership to each such Restaurant and Credit
Card Company and direct that all payments be made directly to the Purchaser
or its assignee.
(c) Transmedia and the Initial Sellers shall, upon the Purchaser's (or
its assignee's) request, and at Transmedia's expense, (i) assemble all the
Initial Sellers', Transmedia's or the Servicer's documents, instruments and
other records (including, without limitation, credit files and computer
tapes or disks) that (A) evidence or will evidence or record Purchased
Assets sold by the Initial Sellers and (B) are otherwise necessary or
desirable to effect Collections of such Purchased Assets (collectively, the
"DOCUMENTS") and (ii) deliver the Documents to the Purchaser or its
designee at a place designated by the Purchaser to the extent that such
Documents have not previously been delivered pursuant to the Transaction
Documents.
(d) Each of the Initial Sellers and Transmedia hereby irrevocably
authorizes the Purchaser or its designee or assignees to take any and all
steps in Transmedia's or the Initial Seller's name and on Transmedia's or
the Initial Seller's behalf necessary or desirable, in the reasonable
opinion of the Purchaser, designee or assignee, to collect all amounts due
under the Purchased Assets, including, without limitation, opening mail
received at the Post Office Boxes, endorsing Transmedia's or the Initial
Seller's name on checks and other instruments representing Collections,
enforcing the Purchased Assets and the underlying Contracts and exercising
all rights and remedies in respect thereof.
(e) Transmedia and the Initial Sellers will (i) deliver to the
Purchaser, its designees or assignees all computer programs, material and
data necessary or desirable to the immediate collection of the Purchased
Assets by the Purchaser, or a party designated by the Purchaser, with or
without the participation of Transmedia or the Initial Sellers, and (ii)
make such arrangements with respect to the collection of the Purchased
Assets as may be reasonably required by the Majority Noteholders.
-24-
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. INDEMNITIES BY TRANSMEDIA AND THE INITIAL SELLERS. Each of
the Initial Sellers and Transmedia agrees, jointly and severally, to indemnify,
defend and hold the Purchaser and its assignees (including the Issuer, the
Trustee, each Member, the Collateral Agent and each Noteholder) harmless from
and against any and all loss, liability, damage, judgment, claim, deficiency or
expense (including interest, penalties, reasonable attorney's fees and amounts
paid in settlement) that is caused by (i) a material breach at any time by
Transmedia or an Initial Seller of its representations, warranties and covenants
contained in Section 3.01 or Section 4.01 or (ii) any material information
furnished by Transmedia or an Initial Seller which is set forth in any schedule
delivered hereunder, being untrue in any material respect when any such
representation was made or schedule delivered, PROVIDED that Transmedia and the
Initial Sellers shall not have any liability with respect to a representation or
warranty as to any specific Contract, Receivable or the related Credits other
than to purchase the Assets in accordance with Section 2.04 hereof. Transmedia
and the Initial Sellers shall also indemnify the Issuer, each Member, the
Trustee, the Collateral Agent, the Noteholders and the Servicer for any cost or
expenses incurred by them in the enforcement of this Agreement. The obligations
of Transmedia and the Initial Sellers under this Section 8.01 shall be
considered to have been relied upon by the Purchaser and shall survive the
execution, delivery and performance of this Agreement, regardless of any
investigation made by or on behalf of the Purchaser, until termination of the
Indenture. If Transmedia or an Initial Seller has made any indemnity payments
pursuant to this Section 8.01 and thereafter the recipient collects any of such
amounts from others, such party will promptly repay the amount collected to
Transmedia or the Initial Seller, as applicable, without interest.
ARTICLE IX
[RESERVED]
ARTICLE X
MISCELLANEOUS
SECTION 10.01. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement, or consent to any departure by Transmedia or an Initial Seller
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Purchaser and the Collateral Agent (acting at the direction of
the Trustee acting at the direction of the holders of a majority of the
principal amount of all the Notes at the time outstanding) and, if required
pursuant to Section 9(c) of the Indenture, the Tn~stee (acting at the direction
of the Majority Noteholders), and then such waiver or consent shall be effective
only in the specific
-25-
instance and for the specific purpose for which given. Notice of any such
amendment or waiver shall be given to the Rating Agency ten Business Days before
taking effect.
SECTION 10.02. NOTICES, ETC. All notices and other communications provided
for hereunder shall be in writing (including telegraphic, telex, facsimile or
cable communication) and mailed, telegraphed, telexed, transmitted, cabled or
delivered,
(a) If to the Purchaser, to it at: TNI Funding I, Inc.
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000X
Xxxxx Xxxxx, Xxxxxxx 00000-0000
Attention: President
(b) If to Transmedia or an Initial Seller, to it at:
Transmedia Network Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000-0000
Attention: President
Telephone: 305/000-0000
Telecopy: 305/892-3342
or, as to each party, at such other address as shall be designated by such
party in a written notice to the other parties. All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt if
delivered by hand or overnight courier service or sent by telex, telecopy or
other telegraphic communications equipment of the sender, or on the date five
Business Days after dispatch by certified or registered mail if mailed, in eacn
case delivered, sent or mailed (properly addressed) to such party as provided in
this Section or in accordance with the latest unrevoked direction from such
party given in accordance with this Section, except that notices to the
Purchaser pursuant to Article II shall not be effective until received by the
Purchaser and the Collateral Agent.
SECTION 10.03. NO WAIVER; REMEDIES. No failure on the part of the Purchaser
to exercise, and no delay in exercising, any right under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 10.04. BINDING EFFECT. This Agreement shall become effective when
it shall have been executed by the Initial Sellers, the Purchaser and
Transmedia. From and after the date this Agreement shall have so become
effective, this Agreement shall be binding upon and inure to the benefit of the
Initial Sellers, the Purchaser and Transmedia and their respective successors
and assigns (including, without limitation, the Trustee, the Issuer, the
Noteholders and the Collateral Agent), except that Transmedia and the Initial
Sellers shall not have the right to assign their rights hereunder or any
interest herein without the prior
-26-
written consent of the Issuer and the Collateral Agent (acting at the
direction of the Majority Noteholders). This Agreement shall create and
constitute the continuing obligations of the parties hereto in accordance with
its terms, and shall remain in full force and effect until such time, after the
Purchase Termination Date, as the Purchaser, the Issuer and the Collateral Agent
shall not have any interest in any Purchased Assets; provided, however, that the
indemnification provisions of Article VIII (and any guarantee with respect
thereto) shall be continuing and shall survive any termination of this
Agreement.
SECTION 10.05. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS AND EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PROTECTION OF THE PURCHASER'S INTEREST IN THE ASSETS, OR REMEDES
HEREUNDER IN RESPECT THEREOF, MAY BE GOVERNED BY.THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK
SECTION 10.06. HEADINGS. Section headings and the Table of Contents used in
this Agreement are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
SECTION 10.07. RESERVED.
SECTION 10.08. ACKNOWLEDGMENT OF ASSIGNMENT. Each of Transmedia and the
Initial Sellers hereby (i) acknowledges and consents to the sale by the
Purchaser to the Issuer of all Purchased Assets acquired hereunder and the
assignment of all of the Purchaser's rights hereunder, (ii) acknowledges and
consents to the security merest granted by the Issuer in the Purchased Assets
and the rights of the Issuer, as assignee, under this Agreement pursuant to the
Security Agreement and (iii) acknowledges that, pursuant to the Security
Agreement, the Collateral Agent, acting at the direction of the Trustee acting
at the direction of the Majority Noteholders, has, among other rights, the
exclusive right (except as expressly provided in the Security Agreement) to take
any action, exercise any remedy, make any decision and agree, subject to the
consent of Transmedia, to amend, waive or modify any provision of this Agreement
as if the Collateral Agent were the Purchaser (regardless of whether an Early
Amortization Event has occu red or is continuing).
SECTION 10.09. ROLE OF TRANSMEDIA. The obligations of Transmedia hereunder
are in addition to its obligations as Servicer under the Purchase and Servicing
Agreement and the other Transaction Documents. In the event of a conflict
between its duties under this Agreement and the Purchase and Servicing Agreement
or other Transaction Documents, however, the terms of the Purchase and Se vicing
Agreement and such other Transaction Documents shall be deemed to control. If
Transmedia is tertninated as Servicer under the Purchase and Servicing
Agreement, Transmedia hereby agrees that it will take no action hereunder which
is in conflict with, or adverse to, any rights of the Successor Servicer, the
Collateral Agent or any Secured Party and, subject to the foregoing, Transmedia
shall take all actions necessary to comply with its obligations hereunder.
-27-
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAWES, TO THE FULLEST
EXIENT PERMMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT.
SECTION 10.11. SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions,
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 10.12. NO PETITION IN BANKRUPTCY. Each of the parties to this
Agreement, other than the Purchaser, hereby covenants and agrees that, prior to
the date which is one year and one day after the payment in filll of all
outstanding Notes, it will not institute against, or join any other Person in
instituting against, the Purchaser or the Issuer any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any State of the United States.
SECTION 10.13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract.
SECTION 10.14. THIIRD PARTY BENEFICIARIES. Each of the Secured Parties
shall be a third-party beneficiary of this Agreement. Without limiting the
foregoing, it is agreed and understood that each Secured Party is relying on and
shall be entitled to all of the benefits of each of the representations,
warranties and covenants set forth herein.
SECTION 10.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS. Each of the
Initial Sellers and Transmedia hereby irrevocably and unconditionally:
(a) submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United
States of America for the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any
judgment;
(b) agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State court or, to the extent
permitted by law, federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law;
(c) consents to any such action or proceeding being brought in such
courts and waives any objection it may now or hereafter have to the laying
of venue of any
-28-
suit, action or proceeding arising out of or relating to this Agreement
in any New York State or federal court or that such action or proceeding
was brought in an inconvenient court, and agrees not to plead or claim the
same;
(d) consents to service of process in the manner provided for notices
in Section 10.02. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by
law; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this subsection any special, exemplary, punitive or consequential
damages.
SECTION 10.16. CONFIRMATION OF INTENT. It is the express intent of the
parties hereto that the transfer and conveyance of the Assets to the Purchaser
pursuant to Section 2.01, in each case and at all times shall be treated under
applicable State law and federal bankruptcy law as a sale by Transmedia and the
Initial Sellers to the Purchaser. If, after the Closing Date, it is determined
that all or any portion of the assets described in Sections 2.01(a) and 2.01(b)
hereof continue to be property of an Initial Seller, then the Initial Sellers
shall have been deemed to have hereby granted to the Purchaser a security
interest in all of such party's right, title and interest in, to and under all
such assets, and this Agreement shall constitute a security agreement under
applicable law.
SECTION 10.17. NO INTEREST IN CARDMEMBER AGREEMENTS. For the benefit of the
Purchaser and its assigns (including the Collateral Agent), Transmedia hereby
confirms and acknowledges that it has previously assigned to Transmedia Service
Company Inc. all of its right, title and interest, if any, in, to and under each
of the Cardmember Agreements, whether now existing or hereafter acquired.
SECTION 10.18. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. Each of
Transmedia and the Initial Sellers appoints as of the date hereof the Collateral
Agent its respective attorney-in-fact with full authority in the place and stead
of Transmedia and the Initial Sellers and in the name of Transmedia and the
Initial Sellers, as applicable, or otherwise, from time to time in the
discretion of the Trustee acting at the direction of the Majority Noteholders,
to take any action and to execute any instrument that the Trustee may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation, after an Early Amortization Event or Purchase Termination
Event has occurred and is continuing to ask, demand, collect, xxx for, recover,
compromise, receive and give acquittance and receipts for moneys due and to
become due under or in connection with the Assets, to settle, compromise,
compound, prosecute or defend any action or proceeding with respect to the
Assets, to receive, endorse and collect all drafts or other instruments and
documents made payable to the Initial Sellers in connection therewith or
representing any payment, dividend or other distribution in respect of the
Assets or any part or proceeds thereof and to give full discharge for the same
or to extend the time of payment of or to make any allowance or adjustment with
respect to any or all of the Assets, or to replace the Servicer, and if an Early
Amortization Event has occurred and is continuing, the Collateral Agent may, as
such attorney-in-fact, file any claims or take any action or institute any
proceedings which the
-29-
Trustee may deem to be necessary or desirable for the collection thereon or
to enforce compliance with the terms and conditions of the Purchase and
Servicing Agreement or the Purchase Agreement.
-30-
IN WITNESS WHEREOF, each of the parties hereto has caused this Purchase
Agreement to be duly executed and delivered by its proper and duly authorized
offtcers as of the date first above written.
TRANSMEDIA NETWORK INC.
By___________________________________
Name:
Title:
TNI FUNDING I, INC.
By____________________________________
Name:
Title:
TRANSMEDIA RESTAURANT COMPANY INC.
By____________________________________
Name:
Title:
TRANSMEDIA SERVICE COMPANY INC.
By____________________________________
Name:
Title:
-31-
EXHIBIT A
FORM OF SETTLEMENT STATEMENT
Effective on the date reflected above and upon transmission of the attached
Daily Report to The Chase Manhattan Bank, Transmedia Restaurant Company, Inc.
("TRCI") and Transmedia Service Company, Inc. ("TSCI") hereby absolutely
transfer all of their right, title and interest in the Assets identified
pursuant to the terms and conditions of the Purchase Agreement, dated as of
December 1, 1996, among TRCI, TRSI, Transmedia Network Inc. and TNI Funding I,
Inc.
TRANSMEDIA SERVICE COMPANY, INC.
By /s/ Xxxxx Xxxxxx
----------------------------------------------------
TRANSMEDIA RESTAURANT COMPANY, INC.
By /s/ Xxxxx Xxxxxxxxx
----------------------------------------------------
EXHIBIT B
FORM OF DAILY REPORT
Effective on the date reflected above and upon transmission of the attached
Daily Report to The Chase Manhattan Bank, Transmedia Restaurant Company, Inc.
("TRCI") and Transmedia Service Company, Inc. ("TSCI") hereby absolutely
transfer all of their right, title and interest in the Assets identified
pursuant to the terms and conditions of the Purchase Agreement, dated as of
December 1, 1996, among TRCI, TRSI, Transmedia Network Inc. and TNI Funding I,
Inc.
TRANSMEDIA SERVICE COMPANY, INC.
By /s/ Xxxxx Xxxxxx
----------------------------------------------------
TRANSMEDIA RESTAURANT COMPANY, INC.
By /s/ Xxxxx Xxxxxxxxx
----------------------------------------------------
EXHIBIT C
FORM OF CONTRACT
[See Attached Forms]
SCHEDULE I
BANK ACCOUNTS AND POST OFFICE BOXES
TITLE OF ACCOUNT BANK ACCT. NO.
Collateral Account The Chase Manhattan Bank 507-868226
Collection Deposit Account The Chase Manhattan Bank 507-869052
POST XXXXXX XXXXX XXXXXXXX X.X. XXX XX.
Xxxxx Xxxxx, XX 000000
33261-9400
SCHEDULE II
TRADENAMES
Transmedia
Transmedia Network Inc.
Transmedia Restaurant Company Inc.
Transmedia Service Company Inc.
SCHEDULE III
CARDMEMBER AGREEMENTS
[delivered to the Trustee on the Closing Date]
SCHEDULE IV
CONTRACT SCHEDULE
[delivered to the Trustee December 24, 1996]
SCHEDULE VII
RPG 400 Proprietary Software
