EXHIBIT 10.01
AMENDMENT NO. 3 TO RECEIVABLES
PURCHASE AGREEMENT
AND
AMENDMENT NO. 1 TO
PERFORMANCE UNDERTAKING
THIS AMENDMENT (this “ Amendment
”) is entered into as of August 4, 2004, among Ceridian
Corporation, a Delaware corporation (“ Ceridian
” or “ Performance Guarantor ”), Comdata
Funding Corporation, a Delaware corporation (“ Seller
”), Comdata Network, Inc., a Maryland corporation (the
“ Servicer ”) (the Servicer together with
Seller, the “ Seller Parties ” and each a
“ Seller Party ”), each Financial Institution
party hereto (the “ Financial Institutions ”),
Jupiter Securitization Corporation (“ Jupiter ”
and, together with the Financial Institutions, the “
Purchasers ”), and Bank One, NA (Main Office Chicago),
as agent for the Purchasers (the “ Agent ”).
RECITALS
Each of the parties hereto other than
Ceridian entered into that certain Receivables Purchase Agreement,
dated as of June 24, 2002, as amended by the Amendment
No. 1 thereto, dated as of June 20, 2003, and Amendment
No. 2, dated as of June 17, 2004 (such agreement, as so
amended, the “ Purchase Agreement ”).
Performance Guarantor entered into
that certain Performance Undertaking dated as of June 24,
2002, in favor of Seller (the “ Performance
Undertaking ”).
Ceridian has advised the Agent that
because of the review of certain capitalization and expensing
procedures as disclosed in Ceridian’s press release dated
July 19, 2004, it may prospectively determine that it will not
be able to timely file with the Securities and Exchange Commission
(“ SEC ”) its quarterly report on Form 10-Q with
respect to the fiscal quarter ending June 30, 2004, and
Ceridian and the Seller Parties have requested that the Agent and
the Purchasers agree to certain amendments of the Purchase
Agreement and the Performance Undertaking to accommodate any such
prospective determination.
Ceridian has further advised the
Agent that the above-described accounting review could
prospectively require Ceridian to restate past financial statement
and related reports, and Ceridian has requested that the Agent and
the Purchasers agree to certain amendments of the Purchase
Agreement and the Performance Undertaking to accommodate any
prospective determination to make any such restatement.
Subject to the terms and conditions
hereof, each of the parties hereto now desires to amend the
Purchase Agreement and the Performance Undertaking as particularly
described herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1.
Definitions Used Herein . Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings set
forth for such terms in the Purchase Agreement or the Performance
Undertaking, as applicable.
Section 2.
Amendments . Subject to the terms and conditions hereinafter
set forth:
(a) The
definition of “ Material Adverse Effect ”
appearing in Exhibit I to the Purchase Agreement is hereby
amended to add the following new sentence at the end thereof:
It is understood and agreed that none
of the following, individually or in the aggregate, will constitute
a Material Adverse Effect: (a) any delay in filing
Ceridian’s quarterly report on Form 10-Q filed with the SEC
for the fiscal quarter of Ceridian ending June 30, 2004, which
does not extend to a date later than September 30, 2004;
(b) any determination by Ceridian made on or before September
30, 2004, that a restatement is required of financial reports or
other information previously required to be delivered under this
Agreement with respect to any period ending before June 30,
2004, as a result of the review of certain capitalization and
expensing procedures at its Human Resources Solutions business, as
disclosed in Ceridian’s press release dated July 19,
2004 (the “ Review ”); (c) any such actual
restatement which is furnished to the Agent on or before
September 30, 2004, to the extent such restatement is not
asserted in writing by the Agent on or before October 15, 2004
to be a material restatement of such previously delivered financial
reports or other information; and (d) any effect of the Review
on the financial statements furnished to the Agent with respect to
the fiscal quarter ending June 30, 2004 which are furnished to
the Agent on or before September 30, 2004, to the extent such
effect is not asserted in writing by the Agent on or before
October 15, 2004 to be a material restatement of such
previously delivered financial reports or other information.
(b) The
definition of “ Material Adverse Effect ”
appearing in Section 1 of the Performance Undertaking is
hereby amended to add the following new sentence at the end
thereof:
It is understood and agreed that none
of the following, individually or in the aggregate, will constitute
a Material Adverse Effect: (a) any delay in filing Performance
Guarantor’s quarterly report on Form 10-Q filed with the SEC
for the fiscal quarter of Performance Guarantor ending
June 30, 2004, which does not extend to a date later than
September 30, 2004; (b) any determination by Performance
Guarantor made on or before September 30, 2004, that a
restatement is required of financial reports or other information
previously
2
required to
be delivered under this Undertaking with respect to any period
ending before June 30, 2004, as a result of the review of
certain capitalization and expensing procedures at its Human
Resources Solutions business, as disclosed in Performance
Guarantor’s press release dated July 19, 2004 (the
“ Review ”); (c) any such actual
restatement which is furnished to the Agent on or before
September 30, 2004, to the extent such restatement is not
asserted in writing by the Recipient (or the Agent, as its
assignee) on or before October 15, 2004 to be a material
restatement of such previously delivered financial reports or other
information; and (d) any effect of the Review on the financial
statements furnished to the Recipient and the Agent with respect to
the fiscal quarter ending June 30, 2004 which are furnished to
the Recipient and the Agent on or before September 30, 2004,
to the extent such effect is not asserted in writing by the
Recipient (or the Agent, as its assignee) on or before
October 15, 2004 to be a material restatement of such
previously delivered financial reports or other information.
(c) Sections 5.1(f)
and 9.1(b) of the Purchase Agreement are hereby amended by
inserting the following proviso before the period at the end
thereof:
; provided however, that no
representation or warranty made which is based on or related to any
previously furnished reports or information required to be restated
as a result of the Review will be deemed to have been incorrect in
any material respect when made or deemed made, for all purposes
under this Agreement, (x) notwithstanding that Ceridian
determines on or before September 30, 2004 that it is required
as a result of the Review to restate its books and records,
financial reports or related information furnis
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