**EXHIBIT10.62**

 

**AMENDMENT NO. 8 TO RECEIVABLES PURCHASEAGREEMENTANDAMENDMENT NO. 6 TO PERFORMANCE UNDERTAKING**

 

**THIS AMENDMENT**(this“Amendment”) is entered into as of March 31, 2005, among CeridianCorporation, a Delaware corporation (“Ceridian” or “PerformanceGuarantor”), Comdata Funding Corporation, a Delaware corporation (“Seller”),Comdata Network, Inc., a Maryland corporation (the “Servicer”) (theServicer together with Seller, the “Seller Parties” and each a “SellerParty”), each Financial Institution party hereto (the “FinancialInstitutions”), JupiterSecuritization Corporation (“Jupiter” and, together with the FinancialInstitutions, the “Purchasers”), and JPMorgan Chase Bank, N.A.,successor by merger to Bank One, NA (Main Office Chicago), as agent for thePurchasers (the “Agent”).

 

*RECITALS*

 

Eachof the parties hereto other than Ceridian entered into that certain ReceivablesPurchase Agreement, dated as of June 24, 2002, as amended by Amendment No. 1thereto, 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, Amendment No. 6, dated as of December 31, 2004, and Amendment No. 7,dated as of January 14, 2005 (such agreement, as so amended, the “PurchaseAgreement”).

 

PerformanceGuarantor entered into that certain Performance Undertaking dated as of June 24,2002, in favor of Seller, as amended by Amendment No. 1 thereto, dated asof August 4, 2004, Amendment No. 2, dated as of September 30,2004, Amendment No. 3, dated as of November 9, 2004, Amendment No. 4,dated as of December 31, 2004 and Amendment No. 5, dated as of January 14,2005   (such undertaking, as so amended, the “PerformanceUndertaking”).

 

Ceridian has advised the Agent that becauseof the review of certain financial accounting procedures as disclosed inCeridian’s Form 12b-25 dated March 17, 2005, it has determinedthat it may not be able to file with the Securities and Exchange Commission (“SEC”)its annual report on Form 10-K with respect to the fiscal yearending December 31, 2004 within the time period contemplated by thePurchase Agreement and the Performance Undertaking, and Ceridian and the SellerParties have requested that the Agent and the Purchasers agree to certainpotential amendments of the Purchase Agreement and the Performance Undertakingto accommodate the possibility that Ceridian will not be able to make suchfiling within such time period.

 

Subjectto the terms and conditions hereof, each of the parties hereto now desires toamend the Purchase Agreement and the Performance Undertaking as particularlydescribed herein.

 

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*AGREEMENT*

 

***NOW, THEREFORE,*** in consideration of the premises,and for other good and valuable consideration, the receipt and sufficiency ofwhich are hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1.  Definitions Used Herein.  Capitalized terms used herein and nototherwise defined herein shall have the respective meanings set forth for suchterms in the Purchase Agreement or the Performance Undertaking, as applicable.

 

Section 2.  Amendments.  Subject to the terms and conditionshereinafter set forth:

 

(a)  The definition of “MaterialAdverse Effect” appearing in Exhibit I to the Purchase Agreement ishereby amended to add the following new sentence at the end thereof:

 

It is understood and agreed that none of thefollowing, individually or in the aggregate, will constitute a Material AdverseEffect: (a) any delay in filing Ceridian’s quarterly report on Form 10-Qfiled 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, or any delay in filing Ceridian’s annual report on Form 10-Kwith the SEC for the fiscal year ending December 31, 2004, which does notextend to a date beyond April 30, 2005; (b) the determination byCeridian that a restatement is required of financial reports or otherinformation previously required to be delivered under this Agreement withrespect to any periods ending before June 30, 2004, as disclosed inCeridian’s press release dated October 18, 2004, as a result of the reviewof certain capitalization and expensing procedures at its Human ResourcesSolutions 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 furnishedto the Agent on or before February 28, 2005, to the extent suchrestatement 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 suchpreviously delivered financial reports or other information; and (d) anyeffect of the Review on the financial statements furnished to the Agent withrespect 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, orany effect of the Review or of the review of Ceridian’s financial accountingprocedures as described in Ceridian’s Form 12b-25 dated March 17,2005 on the financial statements furnished to the Agent with respect to thefiscal year ending December 31, 2004 which are furnished to the Agent onor before April 30, 2005, to the extent any such effect is not asserted inwriting by the Agent to be a material restatement of such previously deliveredfinancial reports or other information on or before fourteen (14) days afterany such effect is communicated in writing to the Agent.

 

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(b)  The definition of “MaterialAdverse Effect” appearing in Section 1 of the Performance Undertakingis hereby amended to add the following new sentence at the end thereof:

 

It is understood and agreed that none of thefollowing, individually or in the aggregate, will constitute a Material AdverseEffect: (a) any delay in filing Performance Guarantor’s quarterly reporton Form 10-Q filed with the SEC for the fiscal quarters ofPerformance Guarantor ending June 30, 2004 and September 30, 2004,which does not extend to a date later than February 28, 2005, or any delayin filing Performance Guarantor’s annual report on Form 10-K withthe SEC for the fiscal year ending December 31, 2004, which does notextend to a date beyond April 30,2005; (b) the determination byPerformance Guarantor that a restatement is required of financial reports orother information previously required to be delivered under this Undertakingwith respect to any periods ending before June 30, 2004, as disclosed inPerformance Guarantor’s press release dated October 18, 2004, as a resultof the review of certain capitalization and expensing procedures at its HumanResources Solutions business, as disclosed in Performance Guarantor’s pressreleases dated July 19, 2004, August 5, 2004, September 30, 2004and October 18, 2004 (the “Review”); (c) any such actualrestatement which is furnished to the Agent on or before February 28, 2005,to the extent such restatement is not asserted in writing by the Recipient (orthe Agent, as its assignee) on or before fourteen (14) days after the Agent’sreceipt thereof to be a material restatement of such previously deliveredfinancial reports or other information; and (d) any effect of the Reviewon the financial statements furnished to the Recipient and the Agent withrespect 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 February 28,2005, or any effect of the Review or of the review of Performance Guarantor’sfinancial accounting procedures as described in Performance Guarantor’s Form 12b-25dated March 17, 2005, to the extent such effect is not asserted in writingby the Recipient (or the Agent, as its assignee) on or before fourteen (14)days after such financial statements are furnished to be a material restatementof such previously delivered financial reports or other information.

 

(c)  The following newdefinition is hereby added to Section 1 of the Performance Undertaking inits appropriate alphabetical order:

 

“GAAP” means generally acceptedaccounting principles from time to time applicable to the financial covenantcomputations under the Credit Agreement.

 

(d)  The following proviso is herebyadded to the end of Section 7.1(a)(i) of the PurchaseAgreement:

 

provided, however, that with respect to thefiscal year of Ceridian ending December 31, 2004, the Seller Parties willnot be required to deliver the financial statements described in this Section 7.1(a)(i) untilApril 30, 2005.

 

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(e)  The following proviso is herebyadded to the end of Section 7(c)(i) of the PerformanceUndertaking:

 

provided, however, that with respect to thefiscal year of Performance Guarantor ending December 31, 2004, PerformanceGuarantor will not be required to deliver the certified audited financialstatements described in this clause (c)(i) until April 30, 2005;

 

Section 3.  Conditions to Effectiveness of thisAmendment.  This Amendment shallbecome effective as of March 31, 2005 when each of the followingconditions precedent has been satisfied:

 

(a)  Amendment.   The Agent shall have received, on or beforethe date hereof, executed counterparts of this Amendment, duly executed by eachof the parties hereto.

 

(b)  Representationsand Warranties.  As of the date hereof, after givingeffect to this Amendment:

 

(i)                                     each of the representations andwarranties of the Seller Parties contained in the Purchase Agreement or anyother Transaction Document to which any Seller Party is a party, shall be trueand correct as though made on and as of the date hereof, except for suchrepresentations that speak only as of an earlier date, in which case they weretrue and correct as of such date (and by its execution hereof, each of theSeller Parties shall be deemed to have represented and warranted such); and

 

(ii)                                  each of the representations andwarranties of the Performance Guarantor contained in the Performance Undertakingshall be true and correct as though made on and as of the date hereof, exceptfor such representations that speak only as of an earlier date, in which casethey were true and correct as of such date (and by its execution hereof, thePerformance Guarantor shall be deemed to have represented and warranted such).

 

(c)  No Amortization Event.  As of the date hereof, after giving effect tothis Amendment, no Amortization Event or Potential Amortization Event shallhave occurred and be continuing (and by its execution hereof, each of theSeller Parties shall be deemed to have represented and warranted such).

 

(d)  Fee.  The Agent shall have received a fully-earnedand non-refundable amendment fee of $5,000 in immediately available funds.

 

Section 5.  Miscellaneous.

 

(a)  Effect;Ratification.  The amendments setforth herein are effective solely for the purposes set forth herein and shallbe limited precisely as written, and shall not be deemed to (i) be aconsent to any amendment, waiver or modification of any other term or conditionof the Performance Undertaking, the Purchase Agreement or of any otherinstrument or agreement referred to therein or (ii) prejudice any right orremedy which any Purchaser or the Agent may 

 

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now have or may have in the future under or in connection with thePerformance Undertaking or Purchase Agreement as amended hereby or any otherinstrument or agreement referred to therein. Each reference in the Purchase Agreement to “this Agreement,” “herein,” “hereof”and words of like import and each reference in the other Transaction Documentsto the Purchase Agreement or to the “Receivables Purchase Agreement” or to the “PerformanceUndertaking” shall mean the Purchase Agreement or Performance Undertaking, asthe case may be, each as amended hereby. Each reference in the Performance Undertaking to “this Undertaking,” “herein,”“hereof” and words of like import and each reference in the other TransactionDocuments to the Performance Undertaking or to the “Purchase Agreement” or “ReceivablesPurchase Agreement” shall mean the Performance Undertaking or PurchaseAgreement, as applicable, each as amended hereby.  This Amendment shall be construed inconnection with and as part of the Performance Undertaking and PurchaseAgreement and all terms, conditions, representations, warranties, covenants andagreements set forth in the Performance Undertaking or Purchase Agreement andeach other instrument or agreement referred to therein, except as hereinamended, are hereby ratified and confirmed and shall remain in full force andeffect.

 

(b)  TransactionDocuments.  This Amendment is aTransaction Document executed pursuant to the Purchase Agreement and thePerformance Undertaking and shall be construed, administered and applied inaccordance with the terms and provisions thereof.

 

(c)  Costs,Fees and Expenses.  Seller agrees toreimburse the Agent and each Purchaser on demand for all costs, fees andexpenses (including, without limitation, the reasonable fees and expenses ofcounsels to the Agent and each Purchaser) incurred in connection with thepreparation, execution and delivery of this Amendment.

 

(d)  Counterparts.  This Amendment may be executed in any numberof counterparts, each such counterpart constituting an original and all ofwhich when taken together shall constitute one and the same instrument.

 

(e)  Severability.  Any provision contained in this Amendmentthat is held to be inoperative, unenforceable or invalid in any jurisdictionshall, as to that jurisdiction, be inoperative, unenforceable or invalidwithout affecting the remaining provisions of this Amendment in thatjurisdiction or the operation, enforceability or validity of such provision inany other jurisdiction.

 

(f)  GOVERNING LAW.  THIS AMENDMENT SHALL BE GOVERNED ANDCONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.

 

(g)  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURYIN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,RELATED TO, OR CONNECTED WITH THIS AMENDMENT, ANY DOCUMENT EXECUTED BY ANYSELLER PARTY OR PERFORMANCE GUARANTOR PURSUANT TO THIS AMENDMENT OR THERELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.

 

(Signature Pages Follow)

 

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***IN WITNESS WHEREOF,***the parties hereto have caused this Amendment to be executed and delivered bytheir respective duly authorized officers or signatories as of the date firstwritten above.

 

COMDATA FUNDING CORPORATION, as Seller

 

 
| By:                                             | /s/ David B. Kuhnau          |   |   |
|-------------------------------------------------|------------------------------|--------|--------|
| Name:                                           | David B. Kuhnau              |   |
| Title:                                          | Vice President               |   |
|                                            |                         |
|                                            |                         |
| COMDATA NETWORK, INC., as Servicer              |                         |
|                                            |                         |
|                                            |                         |
| By:                                             | /s/ Lisa E. Peerman          |   |   |
| Name:                                           | Lisa Peerman                 |   |
| Title:                                          | Vice President               |   |
|                                            |                         |
|                                            |                         |
| CERIDIAN CORPORATION, as Performance  Guarantor |                         |
|                                            |                         |
|                                            |                         |
| By:                                             | /s/ David B. Kuhnau          |   |   |
| Name:                                           | David B. Kuhnau              |   |
| Title:                                          | Vice President and Treasurer |   |
|                                                 |                              |        |        |  |

 

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| JUPITER SECURITIZATION CORPORATION |                 |
|------------------------------------|----------------------|
|                               |                 |
|                               |                 |
| By:                                | /s/ Ronald J. Atkins |   |   |
| Name:                              | Ronald J. Atkins     |   |
| Title:                             | Authorized Signer    |   |
|                                    |                      |  |  |  |

 

 

JPMORGAN CHASE BANK,N.A., SUCCESSOR BY MERGER TO BANK ONE, NA,as a Financial Institution and as Agent

 

 
| By:    | /s/ Ronald J. Atkins |   |   |
|--------|----------------------|--------|--------|
| Name:  | Ronald J. Atkins     |   |
| Title: | Director             |   |
|        |                      |        |        |  |  |

 

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