EXHIBIT 10.4
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT,
ORIGINALLY DATED AS OF MAY 17, 2001,
THE RECEIVABLES PURCHASE AGREEMENT,
ORIGINALLY DATED AS OF MAY 17, 2001,
AND THE PARCO ASSET PURCHASE AGREEMENT,
ORIGINALLY DATED AS OF MAY 17, 2001,
among
PARK AVENUE RECEIVABLES CORPORATION,
RTR FUNDING LLC,
as the Transferor,
iDINE REWARDS NETWORK INC.,
individually and as Servicer,
iDINE RESTAURANT GROUP INC.,
TRANSMEDIA SERVICE COMPANY INC.,
VARIOUS FINANCIAL INSTITUTIONS,
▇▇▇▇▇ ▇▇▇▇▇ ASSOCIATES, LTD.,
as Back-up Servicer
and
JPMORGAN CHASE BANK,
as Funding Agent, Administrative Agent and Successor Servicer
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DATED AS OF MAY 14, 2002
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AMENDMENT NO. 1, dated as of May 14, 2002
This AMENDMENT NO. 1 amends each of:
(i) the First Amended and Restated Receivables Transfer Agreement, dated as
of May 17, 2001 (the "Receivables Transfer Agreement"), by and among RTR
Funding LLC, as the Transferor (the "Transferor"), iDine Rewards Network
Inc., individually ("Rewards") and as the servicer (in such capacity,
the "Servicer"), ▇▇▇▇▇ ▇▇▇▇▇ Associates, Ltd, as back-up servicer (in
such capacity, the "Back-up Servicer"), Park Avenue Receivables
Corporation ("PARCO") and Fairway Finance Corp. ("Fairway") as initial
purchasers (Fairway and PARCO collectively, the "Initial Purchasers"),
JPMorgan Chase Bank, successor by merger to The Chase Manhattan Bank
("JPMorgan"), and Bank of Montreal ("BMO") as APA Banks (JPMorgan and
BMO in such capacity, the "APA Banks"), JPMorgan and BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇
Corp. ("BMONB"), as funding agents for the benefit of the APA Banks
(JPMorgan and BMONB in such capacity, the "Funding Agents") and JPMorgan
as successor servicer (in such capacity, the "Successor Servicer") and
as administrative agent (in such capacity, the "Administrative Agent"),
including Annex X thereto;
(ii) the Amended and Restated Receivables Purchase Agreement, dated as of May
17, 2001 (the "Receivables Purchase Agreement"), by and among Rewards,
iDine Restaurant Group Inc. ("iDine") and Transmedia Service Company
Inc. ("Service Company") as sellers (Rewards, iDine and Service Company
collectively in such capacity, the "Sellers") and RTR Funding LLC as the
purchaser (the "Purchaser"); and
(ii) the Amended and Restated Asset Purchase Agreement, dated as of May 17,
2001 (the "PARCO Asset Purchase Agreement"), by and among PARCO, ▇▇
▇▇▇▇▇▇, as Funding Agent and JPMorgan as an APA Bank.
WITNESSETH:
WHEREAS, the parties hereto wish to extend the PARCO Commitment
Expiry Date and Fairway Commitment Expiry Date to May 15, 2003 and to amend the
Receivables Transfer Agreement, the PARCO Asset Purchase Agreement and the
Receivables Purchase Agreement as set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. For all purposes of this Amendment No.
1, except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms
used herein shall have the meanings assigned to such terms in Annex X to the
Receivables Transfer Agreement, which is incorporated by reference herein. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each other similar
reference contained in the Receivables Transfer Agreement and the PARCO Asset
Purchase Agreement, shall, from and after the Amendment Effective Date (as
defined herein), refer to the Receivables Transfer Agreement and the PARCO Asset
Purchase Agreement, as applicable, as amended hereby.
ARTICLE II
AMENDMENT
TO RECEIVABLES TRANSFER AGREEMENT
AND ANNEX X ATTACHED THERETO
SECTION 2.1 Definition of "PARCO Commitment Expiry Date". The
definition of "PARCO Commitment Expiry Date" found in Annex X to the Receivables
Transfer Agreement is hereby deleted in its entirety and the following is
substituted in its stead:
"PARCO Commitment Expiry Date" shall mean the earliest
to occur of (i) the date on which all amounts due and owing to PARCO and
the PARCO APA Banks under the Receivables Transfer Agreement and the
other Transaction Documents have been indefeasibly paid in full (as
certified by the PARCO Funding Agent) and the PARCO APA Bank Commitments
have been reduced to zero pursuant to Section 2.5 of the PARCO Asset
Purchase Agreement and (ii) May 15, 2003 (as may be extended for an
additional 364 days from time to time in writing by PARCO, the PARCO
Funding Agent and the PARCO APA Banks).
SECTION 2.2 Definition of "Fairway Commitment Expiry Date". The
definition of "Fairway Commitment Expiry Date" found in Annex X to the
Receivables Transfer Agreement is hereby deleted in its entirety and the
following is substituted in its stead:
"Fairway Commitment Expiry Date" shall mean the earliest
to occur of (i) the date on which all amounts due and owing to Fairway
and the Fairway APA Banks under the Receivables Transfer Agreement and
the other Transaction Documents have been indefeasibly paid in full (as
certified by the Fairway Funding Agent), (ii) a Termination Date (not
including pursuant to clause (iii) of the definition of Termination
Date), and (iii) May 15, 2003 (as may be extended for an additional 364
days from time to time in writing by Fairway, the Fairway Funding Agent
and the Fairway APA Banks).
SECTION 2.3 Global Name Change. All occurrences of "The Chase
Manhattan Bank" in the Receivables Transfer Agreement are replaced by the name
"JPMorgan Chase Bank", and the defined term "Chase" is replaced by the term
"JPMorgan".
SECTION 2.4 Other Amendments. (a) Section 2.8(a) of the
Receivables Transfer Agreement is amended by (a) deleting the words "Section
9-402(7) of the Relevant
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UCC" found in the second to last sentence of such section and replacing them
with the words "Section 9-507 of the Relevant UCC"; (b) inserting the phrase
"nor change its state of formation," before the phrase "nor relocate its
respective chief executive office" in the second to last sentence of such
section; (c) inserting the phrase ", state of formation" following the phrase
"by such change in name" in the last sentence of such section.
(b) Section 3.1(k) of the Receivables Transfer Agreement is
amended by adding the following sentence at the end of such section: "The exact
legal name of the Transferor is RTR Funding LLC."
(c) Section 5.2(f) of the Receivables Transfer Agreement is
amended by inserting the phrase ", state of formation" following the words
"change its name, identity" in such section.
ARTICLE III
AMENDMENT TO ASSET PURCHASE AGREEMENT
SECTION 3.1 Definition of "Scheduled Commitment Termination
Date". The definition of "Scheduled Commitment Termination Date" found in the
PARCO Asset Purchase Agreement is hereby deleted in its entirety and the
following is substituted in its stead:
"Scheduled Commitment Termination Date" means May 15,
2003, as such date may be extended for an additional 364 days from time
to time in writing by PARCO, the Funding Agent and the APA Banks.
SECTION 3.2 Global Name Change. All occurrences of "The Chase
Manhattan Bank" in the Asset Purchase Agreement are replaced by the name
"JPMorgan Chase Bank", and the defined term "Chase" is replaced by the term
"JPMorgan".
ARTICLE IV
AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
SECTION 4.1 Term of Receivables Purchase Agreement. Clause (v)
of Section 8.1 of the Receivables Purchase Agreement is hereby amended by
deleting the phrase "the first anniversary of the Amendment Effective Date" and
replacing it with the date "May 15, 2003".
SECTION 4.2 Global Name Change. All occurrences of "The Chase
Manhattan Bank" in the Receivables Purchase Agreement are replaced by the name
"JPMorgan Chase Bank", and the defined term "Chase" is replaced by the term
"JPMorgan".
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SECTION 4.3 Other Amendments. (a) Section 4.1(j) of the
Receivables Purchase Agreement is amended by inserting the following sentence at
the end of such section: "The exact legal names of the Sellers are iDine Rewards
Network Inc., iDine Restaurant Group Inc., and Transmedia Service Company Inc.
(b) Section 5.1(o) of the Receivables Purchase Agreement is
amended by inserting the phrase "or state of formation" following the phrase "or
chief executive office".
SECTION 5.1 This Amendment No. 1 shall become effective on the
date (the "Amendment Effective Date") when (a) it shall have been executed by
the Transferor, Rewards, individually and as Servicer, the Sellers, the Back-up
Servicer, each of the Initial Purchasers, each of the APA Banks, the Funding
Agents, the Administrative Agent and the Successor Servicer; (b) Rewards shall
have paid to Winston & ▇▇▇▇▇▇, counsel to PARCO, the fees and expenses incurred
in connection with the preparation of this Amendment No. 1; and (c) Rewards
shall have paid to each of Fairway and PARCO a renewal fee of $100,000.
SECTION 5.2 This Amendment No. 1 may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 5.3 Headings. Headings used in this Amendment No. 1 are
for convenience of reference only and shall not affect the construction of this
Amendment No. 1.
SECTION 5.4 The parties hereto agree and acknowledge that
nothing contained in this Amendment No. 1 in any manner or respect limits or
terminates any of the provisions of the Receivables Transfer Agreement, the
Receivables Purchase Agreement or the PARCO Asset Purchase Agreement other than
as expressly set forth herein and further agree and acknowledge that the
Receivables Transfer Agreement, Receivables Purchase Agreement and the PARCO
Asset Purchase Agreement each remain and continue in full force and effect and
are hereby ratified and reaffirmed in all respects. No delay on the part of the
Initial Purchasers, the APA Banks, the Administrative Agent or the Funding
Agents in exercising any of their respective rights, remedies, powers and
privileges under the Receivables Transfer Agreement, Receivables Purchase
Agreement or PARCO Asset Purchase Agreement or partial or single exercise
thereof, shall constitute a waiver thereof. None of the terms and conditions of
this Amendment No. 1 may be changed, waived, modified or varied in any manner,
whatsoever, except in accordance with the Receivables Transfer Agreement, the
Receivables Purchase Agreement and the PARCO Asset Purchase Agreement, as
applicable.
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SECTION 5.5 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[Balance of page intentionally left blank. Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be executed and delivered by their proper and duly authorized
officers as of the first date set forth above.
RTR FUNDING LLC, as Purchaser and Transferor
By:
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Printed Name:
-----------------------------
Title:
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iDINE REWARDS NETWORK INC.,
individually, as a Seller and as Servicer
By:
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Printed Name:
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Title:
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iDINE RESTAURANT GROUP INC.,
as a Seller
By:
------------------------------------------
Printed Name:
-----------------------------
Title:
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TRANSMEDIA SERVICE COMPANY INC.,
as a Seller
By:
------------------------------------------
Printed Name:
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Title:
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▇▇▇▇▇ ▇▇▇▇▇ ASSOCIATES, LTD.,
as Back-up Servicer
By:
------------------------------------------
Printed Name:
-----------------------------
Title:
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S-1
JPMORGAN CHASE BANK,
as an APA Bank
By:
------------------------------------------
Printed Name:
-----------------------------
Title:
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JPMORGAN CHASE BANK,
as Funding Agent
By:
------------------------------------------
Printed Name:
-----------------------------
Title:
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JPMORGAN CHASE BANK,
as Administrative Agent
By:
------------------------------------------
Printed Name:
-----------------------------
Title:
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JPMORGAN CHASE BANK,
as Successor Servicer
By:
------------------------------------------
Printed Name:
-----------------------------
Title:
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PARK AVENUE RECEIVABLES
CORPORATION
By:
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Printed Name:
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Title:
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S-2
BANK OF MONTREAL,
as an APA Bank
By:
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Printed Name:
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Title:
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BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP., as
Funding Agent
By:
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Printed Name:
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Title:
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By:
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Printed Name:
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Title:
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FAIRWAY FINANCE CORPORATION
By:
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Printed Name:
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Title:
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S-3
