EXHIBIT 10.13
AMENDMENT NO. 7 TO
RECEIVABLES PURCHASE AGREEMENT
AND
AMENDMENT NO. 5 TO PERFORMANCE UNDERTAKING
THIS AMENDMENT (this “ Amendment
”) is entered into as of January 14, 2005, 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 JPMorgan
Chase Bank, N.A., successor by merger to 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 Amendment No. 1
thereto, dated as of June 20, 2003, Amendment No. 2,
dated as of June 17, 2004, Amendment No. 3, dated as of
August 4, 2004, Amendment No. 4, dated as of
September 30, 2004, Amendment No. 5, dated as of
November 9, 2004 and Amendment No. 6, dated as of
December 31, 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, as amended by Amendment No. 1
thereto, dated as of August 4, 2004, Amendment No. 2,
dated as of September 30, 2004, Amendment No. 3, dated as
of November 9, 2004 and Amendment No. 4, dated as of
December 31, 2004 (such undertaking, as so amended, 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 releases dated
July 19, 2004, August 5, 2004, September 30, 2004
and October 18, 2004, it has determined that it may not be
able to file with the Securities and Exchange Commission (“
SEC ”) its quarterly reports on Form 10-Q with respect
to the fiscal quarter ending June 30, 2004 and
September 30, 2004 within the time periods contemplated by
Amendment No. 6 to Receivables Purchase Agreement and
Amendment No. 4 to Performance Undertaking dated as of
December 31, 2004, and Ceridian and the Seller Parties have
requested that the Agent and the Purchasers agree to certain
potential amendments of the Purchase Agreement and the Performance
Undertaking to accommodate the possibility that Ceridian will not
be able to make such filings within such time periods.
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 quarters of Ceridian ending June 30, 2004 and
September 30, 2004, which does not extend to a date later than
February 28, 2005; (b) the determination by Ceridian that
a restatement is required of financial reports or other information
previously required to be delivered under this Agreement with
respect to any periods ending before June 30, 2004, as
disclosed in Ceridian’s press release dated October 18,
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 releases dated July 19,
2004, August 5, 2004, September 30, 2004, and
October 18, 2004 (the “ Review ”);
(c) any such actual restatement which is furnished to the
Agent on or before February 28, 2005, to the extent such
restatement is not asserted in writing by the Agent on or before
fourteen (14) days after the Agent’s receipt thereof 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
either of the fiscal quarters ending June 30, 2004 or
September 30, 2004 which are furnished to the Agent on or
before February 28, 2005, to the extent such effect is not asserted
in writing by the Agent to be a material restatement of such
previously delivered financial reports or other information on or
before fourteen (14) days after any such effect is
communicated in writing to the Agent.
(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 quarters of Performance Guarantor ending
June 30, 2004 and September
2
30, 2004, which does not extend to a date later than
February 28, 2005; (b) the determination by Performance
Guarantor that a restatement is required of financial reports or
other information previously required to be delivered under this
Undertaking with respect to any periods ending before June 30,
2004, as disclosed in Performance Guarantor’s press
release
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