EXHIBIT 10.03
PERFORMANCE UNDERTAKING
This Performance Undertaking (this "Undertaking"), dated as of June 24,
2002, is executed by Ceridian Corporation, formerly known as New Ceridian
Corporation, a Delaware corporation ("Performance Guarantor") in favor of
Comdata Funding Corporation, a Delaware corporation (together with its
successors and assigns, "Recipient").
RECITALS
1. Comdata Network, Inc., a Maryland corporation ("Originator"), and
Recipient have entered into a Receivables Sale Agreement, dated as of June 24,
2002 (as amended, restated or otherwise modified from time to time, the "Sale
Agreement"), pursuant to which Originator, subject to the terms and conditions
contained therein, is selling its right, title and interest in certain of its
accounts receivable to Recipient.
2. Originator is a Subsidiary of Performance Guarantor and Performance
Guarantor is expected to receive substantial direct and indirect benefits from
the sale of accounts receivable by Recipient to Originator pursuant to the Sale
Agreement (which benefits are hereby acknowledged).
3. As an inducement for Recipient to purchase Originator's accounts
receivable pursuant to the Sale Agreement, Performance Guarantor has agreed to
guaranty the due and punctual performance by Originator of its obligations under
the Sale Agreement and its Servicing Related Obligations (as hereinafter
defined).
4. Performance Guarantor wishes to guaranty the due and punctual
performance by Originator of its obligations to Recipient under or in respect of
the Sale Agreement and its Servicing Related Obligations (as hereinafter
defined), as provided herein.
AGREEMENT
NOW, THEREFORE, Performance Guarantor hereby agrees as follows:
Section 1. Definitions. Capitalized terms used herein and not
defined herein shall the respective meanings assigned thereto in the Sale
Agreement or the Purchase Agreement (as hereinafter defined). The meanings of
defined terms are equally applicable to the singular and plural forms of the
defined terms. In addition:
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
(b) in respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a balance
sheet of such Person prepared as of such date in accordance with
GAAP if such lease were accounted for as a Capital Lease, and (c) in respect of
any Permitted Securitization, the present value of the remaining stream of
scheduled or expected payments due or to become due with respect to any and all
Permitted Receivables at such time subject to such Permitted Securitization,
discounted at a rate equal to the then applicable interest rate of the
indebtedness associated with the Permitted Securitization.
"Capital Lease" means, as applied to any Person, any lease of property
by such Person as lessee that is classified as a capital lease under GAAP.
"Ceridian Credit Agreement" means the Credit Agreement, dated as of
January 31, 2001, among Performance Guarantor, as Borrower, Bank of America,
N.A., as the Administrative Agent and L/C Issuer thereunder, the other lenders
party thereto, and Bank of America Securities LLC, as Sole Lead Arranger and
Sole Book Manager, as amended by the First Amendment thereto, dated as of April
19, 2002.
"Consolidated EBIT" means, for any period, for Performance Guarantor
and its Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income, plus (b) Consolidated Interest Expense, plus (c) the
amount of taxes, based on or measured by income, used or included in the
determination of such Consolidated Net Income, less (d) interest income;
provided, however , "Consolidated Net Income" shall be computed for these
purposes without giving effect to extraordinary losses or gains, or losses or
gains from discontinued operations.
"Consolidated Indebtedness" means, at any time, the sum of (a) all
amounts which would, in accordance with GAAP, be included as indebtedness on a
consolidated balance sheet of Performance Guarantor and its Subsidiaries as of
such time, (b) Attributable Indebtedness incurred by Performance Guarantor or
any of its Subsidiaries in connection with any Permitted Securitization, (c)
Attributable Indebtedness incurred by Performance Guarantor or any of its
Subsidiaries in connection with any Synthetic Lease Obligation, and (d)
Attributable Indebtedness incurred by Performance Guarantor or any of its
Subsidiaries in connection with any Capital Lease.
"Consolidated Interest Expense" means, for any period, for Performance
Guarantor and its Subsidiaries on a consolidated basis, the sum of (a) all
interest, premium payments, fees, charges and related expenses of Performance
Guarantor and its Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP,
and (b) the portion of rent expense of Performance Guarantor and its
Subsidiaries with respect to such period under Capital Leases that is treated as
interest in accordance with GAAP.
"Consolidated Net Income" means, for any period, for Performance
Guarantor and its Subsidiaries on a consolidated basis, the net income of
Performance Guarantor and its Subsidiaries from continuing operations, as
determined in accordance with GAAP.
"Consolidated Net Worth" means, at any time, with respect to
Performance Guarantor and its Subsidiaries on a consolidated basis,
shareholders' equity on the date of determination as
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determined in accordance with GAAP (except that the effects of direct charges or
credits to shareholders' equity related to accounting for pensions ("FAS 87")
and foreign currency translation ("FAS 52") are to be disregarded).
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable Laws of any jurisdiction), including the
interest of a purchaser of accounts receivable, but excluding the interest of a
lessor under an Operating Lease.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of Performance Guarantor; (b) a material
impairment of the ability of Performance Guarantor to perform its obligations
under this Undertaking; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against Performance Guarantor of this
Undertaking.
"Notice of Lien" means any "notice of lien" or similar document
intended to be filed or recorded with any court, registry, recorder's office,
central filing office or other Governmental Authority for the purpose of
evidencing, creating, perfecting or preserving the priority of a lien securing
obligations owing to a Governmental Authority.
"Obligations" means, collectively, (i) all covenants, agreements,
terms, conditions and indemnities to be performed and observed by Originator
under and pursuant to the Sale Agreement and each other document executed and
delivered by Originator pursuant to the Sale Agreement, including, without
limitation, the due and punctual payment of all sums which are or
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may become due and owing by Originator under the Sale Agreement, whether for
fees, expenses (including counsel fees), indemnified amounts or otherwise,
whether upon any termination or for any other reason and (ii) all obligations of
Originator (1) as Servicer under the Receivables Purchase Agreement, dated as of
June 24, 2002 by and among Recipient, Originator, as Servicer, Jupiter
Securitization Corporation, the Financial Institutions and Bank One, NA (Main
Office Chicago), as Agent (as amended, restated or otherwise modified, the
"Purchase Agreement" and, together with the Sale Agreement, the "Agreements") or
(2) which arise pursuant to Sections 8.2, 8.3 or 14.4(a) of the Purchase
Agreement as a result of its termination as Servicer (all such obligations
collectively, the "Servicing Related Obligations").
"Operating Lease" means, as applied to any Person, any lease of
property which is not a Capital Lease.
"Ordinary Course of Business" means, in respect of any transaction
involving Originator, the ordinary course of Originator's business, as conducted
by Originator (or its predecessor) in accordance with past practice and
undertaken by Originator in good faith and not for purposes of evading any
covenant or restriction in any Agreement or other Transaction Document to which
Originator is a party.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws; (b) with respect to
any limited liability company, the articles of formation and operating
agreement; and (c) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership, joint venture or other
applicable agreement of formation and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation with the
secretary of state or other department in the state of its formation, in each
case as amended from time to time.
"Permitted Receivables" means accounts receivable originated by
Originator in the Ordinary Course of Business, together with any guarantees,
insurance, letters of credit, collateral and other ancillary property rights of
Originator arising in connection with the transactions giving rise to such
accounts receivable.
"Permitted Securitization" means (a) a transfer accompanied by the
delivery of a customary true-sale opinion given by independent counsel to a
Securitization Subsidiary or other Person of Permitted Receivables by Originator
for fair value consideration consisting of cash, cash plus a subordinated
interest in, or subordinated indebtedness issued by, the Securitization
Subsidiary or in the transferred Permitted Receivables, and that does not
entail, directly or indirectly, recourse against the seller of such Permitted
Receivables (or against any of such seller's Affiliates, other than a
Securitization Subsidiary) by way of a guarantee or other direct or indirect
support arrangement, with respect to the amount of such receivables based on the
financial condition or circumstances of the obligor thereunder, other than such
limited recourse as is reasonable given market standards for transactions of a
similar type, taking into account such factors as historical bad debt, loss
experience and obligor concentration levels; and (b) if applicable, the issuance
by the Securitization Subsidiary of Indebtedness (as such term is defined in the
Ceridian Credit Agreement) secured by a Lien on any or all of the assets of such
Securitization Subsidiary; provided, however, that the Attributable
Indebted-ness arising in
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connection with all Permitted Securitizations in the aggregate shall not at any
time exceed $150,000,000.
"Person" means (i) any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture, or (ii) any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body,
court, administrative tribunal, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by any of
the foregoing.
"Securitization Subsidiary" means a Subsidiary created solely for
purposes of effectuating a securitization of Permitted Receivables, the
activities and assets of which are limited solely to such purpose and assets,
and the Organization Documents of which contain customary bankruptcy - remote
provisions.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
Section 2. Guaranty of Performance of Obligations. Performance
Guarantor hereby guarantees to Recipient, the full and punctual payment and
performance by Originator of the Obligations. This Undertaking is an absolute,
unconditional and continuing guaranty of the full and punctual performance of
all of the Obligations of Originator under the Agreements and each other
document executed and delivered by Originator pursuant to the Agreements and is
in no way conditioned upon any requirement that Recipient first attempt to
collect any amounts owing by Originator to Recipient, the Agent or the
Purchasers from any other Person or resort to any collateral security, any
balance of any deposit account or credit on the books of Recipient, the Agent or
any Purchaser in favor of Originator or any other Person or other means of
obtaining payment. Should Originator default in the payment or performance of
any of the Obligations, Recipient (or its assigns) may cause the immediate
performance by Performance Guarantor of the Obligations and cause any payment
Obligations to become forthwith due and payable to Recipient (or its assigns),
without demand or notice of any nature (other than as expressly provided
herein), all of which are hereby expressly waived by Performance Guarantor. The
guarantee set forth herein is a guarantee of payment and performance and not
just of collection. Notwithstanding the foregoing, this Undertaking is not a
guarantee of the collection of any of the Receivables and Performance Guarantor
shall not be responsible for any Obligations to the extent the failure to
perform such Obligations by Originator results from Receivables being
uncollectible on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Obligor; provided, that nothing herein shall
relieve Originator from performing in full its Obligations under the Purchase
Agreement or Performance Guarantor of its undertaking hereunder with respect to
the full performance of such duties.
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Section 3. Performance Guarantor's Further Agreements to Pay.
Performance Guarantor further agrees, as the principal obligor and not as a
guarantor only, to pay to Recipient (and its assigns), forthwith upon demand in
funds immediately available to Recipient, all invoiced and reasonable costs and
expenses (including court costs and legal expenses) incurred or expended by
Recipient in connection with the Obligations, this Undertaking and the
enforcement thereof, together with interest on amounts recoverable under this
Undertaking from the time when such amounts become due until payment, at a rate
of interest (computed for the actual number of days elapsed based on a 360 day
year) equal to the Prime Rate plus 2% per annum, such rate of interest changing
when and as the Prime Rate changes.
Section 4. Waivers by Performance Guarantor. Performance
Guarantor waives notice of acceptance of this Undertaking, notice of any action
taken or omitted by Recipient (or its assigns) in reliance on this Undertaking,
and any requirement that Recipient (or its assigns) be diligent or prompt in
making demands under this Undertaking, giving notice of any Termination Event,
Amortization Event, other default or omission by Originator or asserting any
other rights of Recipient under this Undertaking. Performance Guarantor warrants
that it has adequate means to obtain from Originator, on a continuing basis,
information concerning the financial condition of Originator, and that it is not
relying on Recipient to provide such information, now or in the future.
Performance Guarantor also irrevocably waives all defenses (i) that at any time
may be available in respect of the Obligations by virtue of any statute of
limitations, valuation, stay, moratorium law or other similar law now or
hereafter in effect or (ii) that arise under the law of suretyship, including
impairment of collateral. Recipient (and its assigns) shall be at liberty,
without giving notice to or obtaining the assent of Performance Guarantor and
without relieving Performance Guarantor of any liability under this Undertaking,
to deal with Originator and with each other party who now is or after the date
hereof becomes liable in any manner for any of the Obligations, in such manner
as Recipient in its sole discretion deems fit, and to this end Performance
Guarantor agrees that the validity and enforceability of this Undertaking,
including without limitation, the provisions of Section 8 hereof, shall not be
impaired or affected by any of the following: (a) any extension, modification or
renewal of, or indulgence with respect to, or substitutions for, the Obligations
or any part thereof or any agreement relating thereto at any time; (b) any
failure or omission to enforce any right, power or remedy with respect to the
Obligations or any part thereof or any agreement relating thereto, or any
collateral securing the Obligations or any part thereof; (c) any waiver of any
right, power or remedy or of any Termination Event, Amortization Event, or
default with respect to the Obligations or any part thereof or any agreement
relating thereto; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any other
obligation of any person or entity with respect to the Obligations or any part
thereof; (e) the enforceability or validity of the Obligations or any part
thereof or the genuineness, enforceability or validity of any agreement relating
thereto or with respect to the Obligations or any part thereof; (f) the
application of payments received from any source to the payment of any payment
Obligations of Originator or any part thereof or amounts which are not covered
by this Undertaking even though Recipient (or its assigns) might lawfully have
elected to apply such payments to any part or all of the payment Obligations of
Originator or to amounts which are not covered by this Undertaking; (g) the
existence of any claim, setoff or other rights which Performance Guarantor may
have at any time against Originator in connection herewith or any
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unrelated transaction; (h) any assignment or transfer of the Obligations or any
part thereof; (i) the existence of any Adverse Claim with respect to any
Receivable; (j) any release or failure to perfect any Adverse Claim with respect
to, or impair, surrender, release or permit any substitution in exchange for,
all or any part of any collateral securing any of the Obligations; (k) any
failure on the part of Originator to perform or comply with any term of the
Agreements or any other document executed in connection therewith or delivered
thereunder by Originator; or (l) any other circumstance whatsoever which may or
might in any manner or to any extent vary the risk of Performance Guarantor, or
might otherwise constitute a legal or equitable discharge of a surety or
guarantor, it being the purpose and intent of Performance Guarantor that the
liabilities and obligations of Performance Guarantor under this Undertaking
shall be absolute and unconditional under any and all circumstances, and shall
not be discharged except as provided in Section 8, all whether or not
Performance Guarantor shall have had notice or knowledge of any act or omission
referred to in the foregoing clauses (a) through (l) of this Section 4.
Section 5. Unenforceability of Obligations Against Originator.
Notwithstanding (a) any change of ownership of Originator or the insolvency,
bankruptcy or any other change in the legal status of Originator; (b) any law,
regulation, governmental act or decree not or hereafter in effect which does or
might impair, delay or in any manner affect the validity, enforceability or the
payment when due of the Obligations or any of the terms or provisions of the
Sale Agreement, the Purchase Agreement or any other Transaction Document or any
of the rights of Recipient as against Originator or as against any Obligor or
which might cause or which might cause or permit to be invoked any alteration in
time, amount, manner of payment or performance of any Obligations; (c) the
failure of Originator or Performance Guarantor to maintain in full force,
validity or effect or to obtain or renew when required all governmental and
other approvals, licenses or consents required in connection with the
Obligations or this Undertaking, or to take any other action required in
connection with the performance of all obligations pursuant to the Obligations
or this Undertaking; or (d) if any of the moneys included in the Obligations
have become irrecoverable from Originator for any other reason other than final
payment in full of the payment Obligations in accordance with their terms, this
Undertaking shall nevertheless be binding on Performance Guarantor and shall
constitute the primary obligation of Performance Guarantor. This Undertaking
shall be in addition to any other guaranty or other security for the
Obligations, and it shall not be rendered unenforceable by the invalidity of any
such other guaranty or security. In the event that acceleration of the time for
payment of any of the Obligations is stayed upon the insolvency, bankruptcy or
reorganization of Originator or for any other reason with respect to Originator,
all such amounts then due and owing with respect to the Obligations under the
terms of the Agreements, or any other agreement evidencing, securing or
otherwise executed in connection with the Obligations, shall be immediately due
and payable by Performance Guarantor.
Section 6. Representations and Warranties. Performance
Guarantor represents and warrants to Recipient as of the date hereof and as of
the date of each Incremental Purchase and the date of each Reinvestment that:
(a) Corporate Existence and Power. Performance
Guarantor (i) is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation; (ii) has the power
and authority and all material governmental
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licenses, authorizations, consents and approvals to own its assets and carry on
its business and to execute, deliver, and perform its obligations under this
Undertaking; (iii) is duly qualified as a foreign corporation, licensed and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
or license, except where the failure to be so qualified, licensed or in good
standing would not adversely affect the business or operations of Performance
Guarantor in any significant manner; and (iv) is in compliance with all material
Laws applicable to it.
(b) Corporate Authorization; No Contravention. The
execution, delivery and performance by Performance Guarantor of this
Undertaking, and the consummation of the transactions herein contemplated, have
been duly authorized by all necessary corporate action by or on behalf of
Performance Guarantor, and do not and will not (i) contravene the terms of
Performance Guarantor's certificate or articles of incorporation and the bylaws;
(ii) conflict with or result in any breach or contravention of, or the creation
of any Lien under, any document evidencing any Contractual Obligation to which
Performance Guarantor is a party or any of its property is bound or any order,
injunction, writ or decree of any Governmental Authority to which Performance
Guarantor or its property is subject; or (iii) violate any Law applicable to
Performance Guarantor.
(c) Binding Effect. This Undertaking has been duly
executed and delivered and constitutes the legal, valid and binding obligation
of Performance Guarantor, enforce-able against Performance Guarantor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
(d) Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, Performance
Guarantor of this Undertaking.
(e) Financial Condition. The consolidated financial
statements of Performance Guarantor and its consolidated Subsidiaries dated as
of December 31, 2001 heretofore delivered to Recipient (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise noted therein and (ii) are complete, accurate and fairly
present the financial condition of Performance Guarantor and its consolidated
Subsidiaries as of the date thereof and results of operations for the period
covered thereby. Since the later of (i) December 31, 2001 and (ii) the last time
this representation was made or deemed made, there has been no Material Adverse
Effect.
(f) Taxes. Performance Guarantor has filed all
Federal and other material tax returns and reports required to be filed, and
have paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon it or its properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP and no Notice of Lien has been filed or
recorded. There is no proposed tax assessment against Performance Guarantor
which would, if the assessment were made, have
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a Material Adverse Effect. The charges, accruals and reserves on the books of
Performance Guarantor in respect of any taxes or other governmental charges are
adequate.
(g) Litigation and Contingent Obligations. Except as
disclosed in the filings made by Performance Guarantor with the Securities and
Exchange Commission, there are no actions, suits, proceedings, claims or
disputes pending, or to the best knowledge of Performance Guarantor, threatened
or contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against Performance Guarantor or any of its properties which (i)
purport to affect or pertain to this Undertaking or any of the transactions
contemplated hereby, or (ii) would reasonably be expected to have a Material
Adverse Effect (and assuming for this purpose a reasonable likelihood of an
adverse decision). No injunction, writ, temporary restraining order or any order
of any nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery or performance of this
Undertaking or directing that the transactions provided for herein not be
consummated as herein provided. Performance Guarantor is not in default with
respect to any order of any court, arbitrator or governmental body and does not
have any material contingent obligations not provided for or disclosed in the
financial statements referred to in Section 6(e).
Section 7. Covenants. Until the date on which the Aggregate
Unpaids have been indefeasibly paid in full and this Undertaking terminates in
accordance with its terms, Performance Guarantor hereby covenants as set forth
below:
(a) Performance Guarantor shall not permit its ratio
of (i) Consolidated EBIT to (ii) Consolidated Interest Expense, each calculated
for the immediately preceding four fiscal quarters of Performance Guarantor, to
be less than 2.75 to 1.00, provided that at any time Performance Guarantor is
required to report as assets on its balance sheet third party payroll deposit
assets held by Performance Guarantor as trustee in the Ordinary Course of
Business of its payroll deposit business, then such assets and the corresponding
liabilities (to the extent not in excess of such assets) shall not be deemed
assets or liabilities, respectively, for purposes of the covenant contained in
this Section 7(a).
(b) Performance Guarantor shall not permit, as of the
end of any fiscal quarter, its ratio of (i) Consolidated Indebtedness to (ii)
the sum of Consolidated Indebtedness plus Consolidated Net Worth, to be greater
than 50%, provided that at any time Performance Guarantor is required to report
as assets on its balance sheet third party payroll deposit assets held by
Performance Guarantor as trustee in the Ordinary Course of Business of its
payroll deposit business, then such assets and the corresponding liabilities (to
the extent not in excess of such assets) shall not be deemed assets or
liabilities, respectively, for purposes of the covenant contained in this
Section 7(b).
(c) Performance Guarantor shall maintain, for itself
and each of its Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish to Recipient (or its assigns)
(i) within 90 days after the close of each of its respective fiscal years,
audited, unqualified financial statements (which shall include balance sheets,
statements of income and retained earnings and a statement of cash flows) for
Performance Guarantor for such fiscal year certified in a manner reasonably
acceptable to Recipient (or its
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assigns) by independent public accountants reasonably acceptable to Recipient
(or its assigns); and (ii) within 45 days after the close of the first three (3)
quarterly periods of each of its respective fiscal years, balance sheets of
Performance Guarantor as at the close of each such period and statements of
income and retained earnings and a statement of cash flows for Performance
Guarantor for the period from the beginning of such fiscal year to the end of
such quarter, all certified by its chief financial officer, corporate controller
or treasurer.
(d) Performance Guarantor will notify Recipient (or
its assigns) in writing of promptly upon learning of the occurrence of a default
or an event of default under any financing arrangement pursuant to which
Performance Guarantor is a debtor or an obligor thereof, describing the same
and, if applicable, the steps being taken with respect thereto.
Section 8. Subrogation; Subordination. Notwithstanding
anything to the contrary contained herein, Performance Guarantor: (a) will not
enforce or otherwise exercise any right of subrogation to any of the rights of
Recipient, the Agent or any Purchaser against Originator, (b) hereby waives all
rights of subrogation (whether contractual, under Section 509 of the United
States Bankruptcy Code, at law or in equity or otherwise) to the claims of
Recipient, the Agent and the Purchasers against Originator and all contractual,
statutory or legal or equitable rights of contribution, reimbursement,
indemnification and similar rights and "claims" (as that term is defined in the
United States Bankruptcy Code) which Performance Guarantor might now have or
hereafter acquire against Originator that arise from the existence or
performance of Performance Guarantor's obligations hereunder, (c) will not claim
any setoff, recoupment or counterclaim against Originator in respect of any
liability of Performance Guarantor to Originator and (d) waives any benefit of
and any right to participate in any collateral security which may be held by
Beneficiaries, the Agent or the Purchasers. The payment of any amounts due with
respect to any indebtedness of Originator now or hereafter owed to Performance
Guarantor is hereby subordinated to the prior payment in full of all of the
Obligations. Performance Guarantor agrees that, after the occurrence of any
default in the payment or performance of any of the Obligations, Performance
Guarantor will not demand, xxx for or otherwise attempt to collect any such
indebtedness of Originator to Performance Guarantor until all of the Obligations
shall have been paid and performed in full. If, notwithstanding the foregoing
sentence, Performance Guarantor shall collect, enforce or receive any amounts in
respect of such indebtedness while any Obligations are still unperformed or
outstanding, such amounts shall be collected, enforced and received by
Performance Guarantor as trustee for Recipient (and its assigns) and be paid
over to Recipient (or its assigns) on account of the Obligations without
affecting in any manner the liability of Performance Guarantor under the other
provisions of this Undertaking. The provisions of this Section 8 shall be
supplemental to and not in derogation of any rights and remedies of Recipient
under any separate subordination agreement which Recipient may at any time and
from time to time enter into with Performance Guarantor.
Section 9. Termination of this Undertaking. Performance
Guarantor's obligations hereunder shall continue in full force and effect until
all Obligations are finally paid and satisfied in full and the Purchase
Agreement is terminated, provided, that this Undertaking shall continue to be
effective or shall be reinstated, as the case may be, if at any time payment or
other satisfaction of any of the Obligations is rescinded or must otherwise be
restored or returned
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upon the bankruptcy, insolvency, or reorganization of Originator or otherwise,
as though such payment had not been made or other satisfaction occurred, whether
or not Recipient (or its assigns) is in possession of this Undertaking. No
invalidity, irregularity or unenforceability by reason of the federal bankruptcy
code or any insolvency or other similar law, or any law or order of any
government or agency thereof purporting to reduce, amend or otherwise affect the
Obligations shall impair, affect, be a defense to or claim against the
obligations of Performance Guarantor under this Undertaking.
Section 10. Effect of Bankruptcy. This Undertaking shall
survive the insolvency of Originator and the commencement of any case or
proceeding by or against Originator under the federal bankruptcy code or other
federal, state or other applicable bankruptcy, insolvency or reorganization
statutes. No automatic stay under the federal bankruptcy code with respect to
Originator or other federal, state or other applicable bankruptcy, insolvency or
reorganization statutes to which Originator is subject shall postpone the
obligations of Performance Guarantor under this Undertaking.
Section 11. Setoff. Regardless of the other means of obtaining
payment of any of the Obligations, Recipient (and its assigns) is hereby
authorized at any time and from time to time, without notice to Performance
Guarantor (any such notice being expressly waived by Performance Guarantor) and
to the fullest extent permitted by law, to set off and apply any deposits and
other sums against the obligations of Performance Guarantor under this
Undertaking, whether or not Recipient (or any such assign) shall have made any
demand under this Undertaking and although such Obligations may be contingent or
unmatured, provided, that any funds on deposit in the Ceridian Payroll Trust
held by Performance Guarantor for its customers shall not be subject to the
setoff rights set forth in this Section 11.
Section 12. Taxes. All payments to be made by Performance
Guarantor hereunder shall be made free and clear of any deduction or
withholding. If Performance Guarantor is required by law to make any deduction
or withholding on account of tax or otherwise from any such payment, the sum due
from it in respect of such payment shall be increased to the extent necessary to
ensure that, after the making of such deduction or withholding, Recipient
receive a net sum equal to the sum which they would have received had no
deduction or withholding been made.
Section 13. Further Assurances. Performance Guarantor agrees
that it will from time to time, at the request of Recipient (or its assigns),
provide information relating to the business and affairs of Performance
Guarantor as Recipient may reasonably request. Performance Guarantor also agrees
to do all such things and execute all such documents as Recipient (or its
assigns) may reasonably consider necessary or desirable to give full effect to
this Undertaking and to perfect and preserve the rights and powers of Recipient
hereunder.
Section 14. Successors and Assigns. This Undertaking shall be
binding upon Performance Guarantor, its successors and permitted assigns, and
shall inure to the benefit of and be enforceable by Recipient and its successors
and assigns. Performance Guarantor may not assign or transfer any of its
obligations hereunder without the prior written consent of each of Recipient and
the Agent. Without limiting the generality of the foregoing sentence, Recipient
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may assign or otherwise transfer the Agreements, any other documents executed in
connection therewith or delivered thereunder or any other agreement or note held
by them evidencing, securing or otherwise executed in connection with the
Obligations, or sell participations in any interest therein, to any other entity
or other person, and such other entity or other person shall thereupon become
vested, to the extent set forth in the agreement evidencing such assignment,
transfer or participation, with all the rights in respect thereof granted to the
Beneficiaries herein. Recipient shall provide notice to Performance Guarantor of
any such assignment, transfer or sale, however, the failure to provide such
notice shall not affect any of Recipient's, such assignee's, such transferee's
or such buyer's rights hereunder or under any Agreement.
Section 15. Amendments and Waivers. No amendment or waiver of
any provision of this Undertaking nor consent to any departure by Performance
Guarantor therefrom shall be effective unless the same shall be in writing and
signed by Recipient, the Agent and Performance Guarantor. No failure on the part
of Recipient to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right.
Section 16. Notices. All notices and other communications
provided for hereunder shall be made in writing and shall be addressed as
follows: if to Performance Guarantor, at the address set forth beneath its
signature hereto, and if to Recipient, at the addresses set forth beneath its
signature hereto, or at such other addresses as each of Performance Guarantor or
any Recipient may designate in writing to the other. Each such notice or other
communication shall be effective (1) if given by telecopy, upon the receipt
thereof, (2) if given by mail, three (3) Business Days after the time such
communication is deposited in the mail with first class postage prepaid or (3)
if given by any other means, when received at the address specified in this
Section 16.
SECTION 17. GOVERNING LAW. THIS UNDERTAKING SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
SECTION 18. CONSENT TO JURISDICTION. EACH OF PERFORMANCE
GUARANTOR AND RECIPIENT HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
UNDERTAKING, THE AGREEMENTS OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION
THEREWITH OR DELIVERED THEREUNDER AND EACH OF PERFORMANCE GUARANTOR AND
RECIPIENT HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM.
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Section 19. Confidentiality. Performance Guarantor shall
maintain and shall cause each of its employees and officers to maintain the
confidentiality of this Undertaking, the other Transaction Documents and the
other confidential or proprietary information with respect to the transactions
contemplated by the Transaction Documents and with respect to the Agent and
Company and their respective businesses obtained by it in connection with the
structuring, negotiating and execution of the transactions contemplated herein
and therein, except that Performance Guarantor and its officers and employees
may disclose such information to Performance Guarantor's external accountants
and attorneys and as required by any applicable law, regulation (including,
without limitation, the federal securities laws and regulations) or order of any
judicial or administrative proceeding.
Section 20. Bankruptcy Petition. Performance Guarantor hereby
covenants and agrees that, prior to the date that is one year and one day after
the payment in full of all outstanding senior Indebtedness of Company, it will
not institute against, or join any other Person in instituting against, Company
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United States or
any state of the United States.
Section 21. Adjustments to GAAP. If at any time any change in
GAAP would affect the computation of the financial ratios set forth in Sections
7(a) or 7(b) hereof, and Performance Guarantor shall so request, the Recipient,
its assigns and Performance Guarantor shall negotiate in good faith to amend
such ratio to preserve the original intent thereof in light of such change in
GAAP; provided that, until so amended, (a) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and
(b) Performance Guarantor shall provide to Recipient and its assigns financial
statements and other documents required under this Undertaking or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.
Section 22. Miscellaneous. This Undertaking constitutes the
entire agreement of Performance Guarantor with respect to the matters set forth
herein. The rights and remedies herein provided are cumulative and not exclusive
of any remedies provided by law or any other agreement, and this Undertaking
shall be in addition to any other guaranty of or collateral security for any of
the Obligations. The provisions of this Undertaking are severable, and in any
action or proceeding involving any state corporate law, or any state or federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of Performance Guarantor hereunder would
otherwise be held or determined to be avoidable, invalid or unenforceable on
account of the amount of Performance Guarantor's liability under this
Undertaking, then, notwithstanding any other provision of this Undertaking to
the contrary, the amount of such liability shall, without any further action by
Performance Guarantor or Recipient, be automatically limited and reduced to the
highest amount that is valid and enforceable as determined in such action or
proceeding. Any provisions of this Undertaking which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Unless
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otherwise specified, references herein to "Section" shall mean a reference to
sections of this Undertaking.
* * * *
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IN WITNESS WHEREOF, Performance Guarantor has caused this Undertaking
to be executed and delivered as of the date first above written.
CERIDIAN CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Address: 0000 X. Xxx Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attn: Treasurer
Acknowledged and agreed to
this ___ day of June, 2002:
COMDATA FUNDING CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Assistant Treasurer
Address: 0000 Xxxxxxxx Xxx
Xxxxxxxxx, XX 00000
Attn: Treasurer
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