EIGHTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 10.01
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of May 15, 2005, is entered into by and among CERIDIAN CORPORATION, a Delaware corporation formerly known as New Ceridian Corporation (the “Borrower”), the several financial institutions party to the Credit Agreement defined below (each a “Lender” and, collectively, the “Lenders”) and BANK OF AMERICA, N.A., as administrative agent for itself and the other Lenders (in such capacity, the “Administrative Agent”).
RECITALS
A. The Borrower, each Lender and the Administrative Agent are parties to that certain Credit Agreement dated as of January 31, 2001, as amended (the “Credit Agreement”), pursuant to which the Administrative Agent and the Lenders have extended certain credit facilities to the Borrower.
B. The Borrower has advised the Lenders that because of the reasons disclosed in the Borrower’s Form 12b-25 dated May 11, 2005 it has determined that it may not be able to file with the SEC its quarterly report on Form 10-Q with respect to the fiscal quarter ending March 31, 2005 within the time period contemplated by the Credit Agreement, and the Borrower has requested that the Lenders agree to certain amendments of the Credit Agreement to accommodate the possibility that the Borrower will not be able to make such filings within such time period.
C. The Lenders are willing to amend the Credit Agreement subject to the terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein shall have the meanings, if any, assigned to them in the Credit Agreement.
2. Amendments to Credit Agreement. The Credit Agreement shall be amended as follows, effective as of the Effective Date:
(a) The last sentence of the definition of “Material Adverse Effect” appearing in Section 1.01 of the Credit Agreement shall be amended in its entirety to provide as follows:
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 the Borrower’s quarterly report on Form 10-Q filed with the SEC for the fiscal quarters of the Borrower ending June 30, 2004 and September 30, 2004, which does not extend to a date later than February 28, 2005, any delay in filing the Borrower’s annual report on Form 10-K filed with the SEC for fiscal year of the Borrower ending December 31, 2004,
which does not extend to a date later than April 30, 2005 and any delay in filing the Borrower’s quarterly report on Form 10-Q filed with the SEC for the fiscal quarter of the Borrower ending March 31, 2005 which does not extend to a date later than June 15, 2005; (b) the determination by the Borrower that a restatement is required of financial reports or other information previously required to be delivered under this Agreement with respect to periods ending before December 31, 2004, as disclosed in Borrower’s annual report on Form 10-K filed with the SEC with respect to the fiscal year ending December 31, 2004 and in other filings made by the Borrower with the SEC thereafter and on or prior to May 5, 2005 relating to periods ending on or prior to December 31, 2004 (collectively, the “Filings”), as a result of the review of various financial accounting policies and procedures as described in the Filings (the “Review”); (c) any such actual restatements which are furnished to the Lenders on or before May 5, 2005, to the extent such restatement is not asserted in writing by the Required Lenders to constitute a Material Adverse Effect on or before fourteen days after any such restatement is furnished to the Lenders (collectively, the “Restatements); and (d) any effect of the Review on the financial statements furnished to the Lenders with respect to any of the fiscal periods ending before December 31, 2004 which are furnished to the Lenders on or before May 5, 2005, or any effect of the Review or of the review of the Borrower’s Form 12b-25 dated May 11, 2005 on the financial statements furnished to the Lenders with respect to the fiscal quarter ending March 31, 2005 which are furnished to the Lenders on or before June 15, 2005, to the extent any such effect is not asserted in writing by the Required Lenders to constitute a Material Adverse Effect on or before fourteen (14) days after any such effect is communicated in writing to the Lenders.
(b) Section 6.01(b) of the Credit Agreement shall be amended by inserting the following proviso before the period at the end thereof:
; provided further, that with respect to the fiscal quarter of the Borrower ending March 31, 2005, the Borrower will not be required to deliver the reports or other information described above in this Section 6.01(b) until June 15, 2005.
(c) Section 6.02(a) of the Credit Agreement shall amended by replacing the proviso at the end thereof in its entirety with the following:
; provided however, that this Section 6.02(a) will not be deemed breached or violated by reason of the effect of any of the Restatements.
(d) Section 6.09 of the Credit Agreement shall be amended by replacing the proviso at the end thereof in its entirety with the following:
; provided further, that the Borrower will not be deemed to have breached or violated this Section 6.09 by reason of the Restatements.
(e) Sections 7.09 and 7.10 shall be amended by inserting the following proviso before the period at the end thereof:
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; provided further, that this requirement will not be measured with respect to the fiscal quarter ending March 31, 2005 until the financial reports required under Section 6.01(b) with respect to such period are furnished in accordance with Section 6.01(b).
(f) Section 8.01(d) shall be amended by replacing the proviso at the end thereof in its entirety with the following:
; provided however, that no representation or warranty made by the Borrower which is based on or related to any previously furnished reports or information that has been revised by reason of any of the Restatements will be deemed to have been incorrect in any material respect when made or deemed made for all purposes under this Agreement.
3. Representations and Warranties. The Borrower hereby represents and warrants to the Administrative Agent and the Lenders as follows:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Borrower of this Amendment have been duly authorized by all necessary corporate and other action and do not and will not require any registration with, consent or approval of, notice to or action by, any Person (including any Governmental Authority) in order to be effective and enforceable. The Credit Agreement as amended by this Amendment constitutes the legal, valid and binding obligation of the Borrower, enforceable against it in accordance with its respective terms, without defense, counterclaim or offset.
(c) All representations and warranties of the Borrower contained in Article V of the Credit Agreement are true and correct as of the Effective Date, except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(d) The Borrower is entering into this Amendment on the basis of its own investigation and for its own reasons, without reliance upon the Administrative Agent and the Lenders or any other Person.
4. Effective Date. Except with respect to the provisions of Section 6 hereof, which will become effective in accordance with the terms of such Section 6, this Amendment will become effective as of May 15, 2005 (such date, the “Effective Date”), to the extent all of the conditions precedent set forth in this Section 4 have been satisfied on or prior to May 15, 2005:
(a) The Administrative Agent shall have received from each of the Borrower and the Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) counterpart to this Amendment.
(b) The Administrative Agent shall have received from the Borrower a certificate executed by the secretary, deputy secretary or assistant secretary of the Borrower providing satisfactory evidence of the authorization of the execution, delivery and performance by the Borrower of this Amendment.
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(c) The Borrower shall not have furnished the reports and other information required to be furnished with respect to the fiscal quarter of the Borrower ending March 31, 2005 within the time periods required pursuant to Section 6.01(b) of the Credit Agreement (prior to giving effect to the amendment to such Section set forth above in this Amendment).
(d) The Borrower shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to May 15, 2005, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings related to this Amendment (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(e) The Administrative Agent shall have received, in form and substance satisfactory to it, such additional approvals, consents, opinions, documents and other information as the Administrative Agent may request prior to May 15, 2005.
(f) The Administrative Agent shall have received from the Borrower the amount payable in accordance with Section 6 hereof.
5. Reservation of Rights. The Borrower acknowledges and agrees that the execution and delivery by the Administrative Agent and the Required Lenders of this Amendment shall not (a) be deemed to create a course of dealing or otherwise obligate the Administrative Agent or the Lenders to execute similar amendments under the same or similar circumstances in the future or (b) be deemed to create any implied waiver of any right or remedy of the Administrative Agent or any Lender with respect to any term or provision of any Loan Document.
6. Fees. If the conditions precedent described in Section 4 hereof (other than the condition set forth in Section 4(f)) are satisfied, the Borrower agrees to pay to each Lender which duly executes and delivers an original (or, if elected by the Administrative Agent, an executed facsimile copy) counterpart to the Amendment prior to May 15, 2005 (an “Approving Lender”), $5,000 as compensation for the administrative time and expense incurred by each such Lender in connection with such execution and delivery. The aggregate amount of all such fees shall be delivered by the Borrower to the Administrative Agent on May 15, 2005 for prompt distribution by the Administrative Agent to the Approving Lenders.
7. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and provisions of the Credit Agreement are and shall remain in full force and effect and all references therein to such Credit Agreement shall henceforth refer to the Credit Agreement as amended by this Amendment. This Amendment shall be deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns. No third party beneficiaries are intended in connection with this Amendment.
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(c) THIS AMENDMENT IS SUBJECT TO THE PROVISIONS OF SECTIONS 10.17 AND 10.18 OF THE CREDIT AGREEMENT RELATING TO GOVERNING LAW AND WAIVER OF RIGHT TO TRIAL BY JURY, THE PROVISIONS OF WHICH ARE BY THIS REFERENCE HEREBY INCORPORATED HEREIN IN FULL.
(d) This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Each of the parties hereto understands and agrees that this Amendment (and any other document required herein) may be delivered by any party thereto either in the form of an executed original or an executed original sent by facsimile transmission to be followed promptly by mailing of a hard copy original, and that receipt by the Administrative Agent of a facsimile transmitted document purportedly bearing the signature of a Lender or the Borrower shall bind such Lender or the Borrower, respectively, with the same force and effect as the delivery of a hard copy original. Any failure by the Administrative Agent to receive the hard copy executed original of such document shall not diminish the binding effect of receipt of the facsimile transmitted executed original of such document of the party whose hard copy page was not received by the Administrative Agent.
(e) This Amendment, together with the Credit Agreement, contains the entire and exclusive agreement of the parties hereto with reference to the matters discussed herein and therein. This Amendment supersedes all prior drafts and communications with respect thereto. This Amendment may not be amended except in accordance with the provisions of Section 10.01 of the Credit Agreement.
(f) If any term or provision of this Amendment shall be deemed prohibited by or invalid under any applicable law, such provision shall be invalidated without affecting the remaining provisions of this Amendment or the Credit Agreement, respectively.
(g) The Borrower covenants to pay to or reimburse the Administrative Agent and the Lenders, upon demand, for all out-of-pocket costs and expenses incurred in connection with the development, preparation, negotiation, execution and delivery of this Amendment.
(h) This Amendment shall constitute a “Loan Document” under and as defined in the Credit Agreement.
(Remainder of page intentionally left blank)
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first above written.
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CERIDIAN CORPORATION, as the Borrower |
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: |
Xxxxx X. Xxxxxx |
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Title: |
Vice President and Treasurer |
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(Signature Page to Eighth Amendment)
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BANK OF AMERICA, N.A., as the |
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By: |
/s/ W. Xxxxxx Xxxxxxx |
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Name: |
W. Xxxxxx Xxxxxxx |
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Title: |
Senior Vice President |
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(Signature Page to Eighth Amendment)
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AMSOUTH BANK, as a Lender |
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By: |
/s/ Xxxx Xxxxx |
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Name: |
Xxxx Xxxxx |
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Title: |
Vice President |
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(Signature Page to Eighth Amendment)
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WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender |
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By: |
/s/ Xxxxxx X. Xxxxxxx |
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Name: |
Xxxxxx X Xxxxxxx |
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Title: |
Director |
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(Signature Page to Eighth Amendment)
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MELLON BANK, N.A., as a Lender |
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By: |
/s/ Xxxxxx X. Xxxxxxx |
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Name: |
Xxxxxx X. Xxxxxxx |
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Title: |
First Vice President |
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(Signature Page to Eighth Amendment)
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PNC BANK, NATIONAL ASSOCIATION, as a |
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By: |
/s/ Xxxx X. XxXxxxxxx |
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Name: |
Xxxx X. XxXxxxxxx |
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Title: |
Vice President |
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(Signature Page to Eighth Amendment)
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THE BANK OF NEW YORK, as a Lender |
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By: |
/s/ Xxxxxx X. Xxxxxxx |
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Name: |
Xxxxxx X. Xxxxxxx |
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Title: |
Vice President |
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(Signature Page to Eighth Amendment)
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THE BANK OF TOKYO-MITSUBISHI, LTD., |
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By: |
/s/ Xxxxxxx XxXxx |
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Name: |
Xxxxxxx XxXxx |
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Title: |
Vice President & Manager |
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(Signature Page to Eighth Amendment)
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JPMORGAN CHASE BANK, N.A. (successor in |
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: |
Xxxxx X. Xxxxxx |
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Title: |
Vice President |
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(Signature Page to Eighth Amendment)
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THE ROYAL BANK OF SCOTLAND PLC, as |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: |
Xxxxxxxx Xxxxxxxxx |
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Title: |
Senior Vice President |
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(Signature Page to Eighth Amendment)
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U.S. BANK NATIONAL ASSOCIATION, as a |
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By: |
/s/ Xxxx X. Xxxx |
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Name: |
Xxxx X. Xxxx |
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Title: |
Corporate Banking Officer |
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(Signature Page to Eighth Amendment)
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XXXXX FARGO BANK, NATIONAL |
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By: |
/s/ Xxxx X. Xxxxxxxxxx |
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Name: |
Xxxx X. Xxxxxxxxxx |
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Title: |
Vice President |
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By: |
/s/ Xxxxxxxx X. Xxxxxxx |
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Name: |
Xxxxxxxx X. Xxxxxxx |
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Title: |
Vice President & Loan Team Manager |
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(Signature Page to Eighth Amendment)
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