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 Performanc
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