EXHIBIT
10.02
AMENDMENT NO. 4 TO
RECEIVABLES PURCHASE AGREEMENT
AND
AMENDMENT NO. 2 TO
PERFORMANCE UNDERTAKING
THIS AMENDMENT (this “ Amendment
”) is entered into as of September 30, 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 Amendment No. 1 thereto, dated as of June 20,
2003, Amendment No. 2, dated as of June 17, 2004, and
Amendment No. 3, dated as of August 4, 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 (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 and
August 5, 2004, it has determined that it will not be able to
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 within the time
period contemplated by Amendment No. 3 to Receivables Purchase
Agreement and Amendment No. 1 to Performance Undertaking dated
as of August 4, 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 such 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
November 9, 2004; (b) any determination by Ceridian made
on or before November 9, 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 releases
dated July 19, 2004 and August 5, 2004 (the “
Review ”); (c) any such actual restatement which
is furnished to the Agent on or before November 9, 2004, to
the extent such restatement is not asserted in writing by the Agent
on or before November 24, 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
November 9, 2004, to the extent such effect is not asserted in
writing by the Agent on or before November 24, 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
2
the
fiscal quarter of Performance Guarantor ending June 30, 2004,
which does not extend to a date later than November 9, 2004;
(b) any determination by Performance Guarantor made on or
before November 9, 2004, that a restatement is required of
financial reports or other information previously 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 releases dated July 19, 2004 and August 5, 2004
(the “ Review ”); (c) any such actual
restatement which is furnished to the Agent on or before
November 9, 2004, to the extent such restatement is not
asserted in writing by the Recipient (or the Agent, as its
assignee) on or before November 24, 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 November 9, 2004, to
the extent such effect is not asserted in writing by the Recipient
(or the Agent, as its assignee) on or before November 24, 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 incorr
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