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 furnished under this Agreement with regard to
any period ending before June 30, 2004; or (y
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