EXHIBIT 10.11
AMENDMENT NO. 5 TO RECEIVABLES PURCHASE
AGREEMENT
AND
AMENDMENT NO. 3 TO PERFORMANCE UNDERTAKING
THIS AMENDMENT (this “ Amendment
”) is entered into as of November 9, 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,
Amendment No. 3, dated as of August 4, 2004, and
Amendment No. 4, dated as of September 30, 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, and
Amendment No. 2, dated as of September 30, 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 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. 4 to Receivables Purchase Agreement and
Amendment No. 2 to Performance Undertaking dated as of
September 30, 2004, and that it will not be able to timely
file with the SEC its quarterly report on Form 10-Q with respect to
the fiscal quarter ending September 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 such
determination.
Ceridian has
further advised the Agent that the above-described accounting
review will require Ceridian to restate past financial statements
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 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 quarters of Ceridian ending
June 30, 2004 and September 30, 2004, which does not
extend to a date later than December 31, 2004; (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 December 31, 2004, to
the extent such restatement is not asserted in writing by the Agent
on or before January 15, 2005 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 December 31, 2004, to
the extent such effect is not asserted in writing by the Agent on
or before January 15, 2005 to be a material restatement of
such previously delivered financial reports or other
information.
2
(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 30, 2004,
which does not extend to a date later than December 31, 2004;
(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 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 Performance Guarantor’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 December 31, 2004, to
the extent such restatement is not asserted in writing by the
Recipient (or the Agent, as its assignee) on or before
January 15, 2005 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 either of
the fiscal quarters ending June 30, 2004 or September 30,
2004 which are furnished to the Recipient and the Agent on or
before December 31, 2004, to the extent such effect is not
asserted in writing by the Recipient (or the Agent, as its
assignee) on or before January 15, 2005 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
howev
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