Ex-10.8 Amendment to Credit Agreement

EX-10.8 3 w48557ex10-8.txt EX-10.8 AMENDMENT TO CREDIT AGREEMENT 1 EXHIBIT 10.8 AMENDMENT TO CREDIT AGREEMENT THIS AMENDMENT TO CREDIT AGREEMENT ("Amendment"), dated as of March 29, 2001, is entered into by and among CERIDIAN CORPORATION, a Delaware corporation, (the "Borrower"), each lender from time to time party hereto (collectively, the "Lenders" and individually, a "Lender"), BANK OF AMERICA, N.A., as the Administrative Agent and L/C Issuer (the "Administrative Agent"), and FLEET NATIONAL BANK, as the Syndication Agent. RECITALS A. The Borrower, Lenders, and Administrative Agent are parties to a Credit Agreement dated as of January 31, 2001 (the "Credit Agreement") pursuant to which the Administrative Agent and the Lenders have extended certain credit facilities to the Borrower. B. The Borrower has requested that the Lenders agree to certain amendments of the Credit Agreement and the schedules thereto. C. The Lenders are willing to amend the Credit Agreement and the schedules thereto, 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. (a) Section 7.07(a)(i) of the Credit Agreement shall be amended by deleting such subsection in its entirety and replacing it with the following: (i) declare and make (A) the Distribution, or (B) dividend payments or other distributions payable solely in shares of its common stock (and solely in respect of fractional shares, cash of a de minimis amount), or (C) pursuant to the terms of a shareholder rights agreement approved by Borrower's board of directors, distributions on a ratable basis to all then-existing common stock shareholders payable solely in shares of preferred stock of the Borrower, or rights or options to acquire additional shares of its common stock upon the occurrence of certain events, and provided there exists no Default or Event of Default, cash payments by the Borrower upon the redemption or purchase by the Borrower of such rights or options, not exceeding in the aggregate for all such payments from and after the Closing Date $200,000; (b) Schedule 5.21 of the Credit Agreement shall be amended by deleting it in its entirety and replacing it with Schedule 5.21 as attached hereto; 1. 2 (c) Section 6.15(a) of the Credit Agreement shall be amended by deleting the clause beginning with "provided, however," and continuing to the end of the subsection and replacing it with the following: provided, however, that (i) that if any additional Subsidiary so incorporated, created or acquired is a Foreign Subsidiary of a Subsidiary incorporated within the United States, in no event shall more than 65% of the capital stock of any such Foreign Subsidiary be required to be so pledged, and (ii) no such pledge of capital stock shall be required if such Foreign Subsidiary is a Subsidiary of another Foreign Subsidiary. 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 obligations 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 the Credit Agreement are true and correct. (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. This Amendment will become effective on the date shown first above (the "Effective Date"), provided that each of the following conditions precedent is satisfied: (a) The Administrative Agent has received from the Borrower and each of the Required Lenders a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment, together with a duly executed Guarantor Acknowledgment and Consent in the form attached hereto (the "Consent"). (b) The Administrative Agent has received from the Borrower and all guarantors a copy of a resolution passed by the board of directors of such corporation, certified by the Secretary or an Assistant Secretary of such corporation as being in full force and effect on the date hereof, authorizing the execution, delivery and performance of this Amendment (or the Consent, as applicable). (c) All representations and warranties contained herein are true and correct as of the Effective Date. 2. 3 5. 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. (c) This Amendment shall be governed by and construed in accordance with the law of the State of New York. (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 document (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, upon demand, for all costs and expenses (including allocated costs of in-house counsel) incurred in connection with the development, preparation, negotiation, execution and delivery of this Amendment. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first above written. 3. 4 CERIDIAN CORPORATION By: /s/ JOHN H. GRIERSON -------------------------------------- Title: Vice President and Treasurer ----------------------------------- BANK OF AMERICA , N.A., as Administrative Agent, a Lender and L/C Issuer By: /s/ CHITT SWAMIDASAN -------------------------------------- Title: Principal ----------------------------------- FLEET NATIONAL BANK, as a Lender By: /s/ RICK ANDERSON -------------------------------------- Title: Group Manager ----------------------------------- U.S. NATIONAL ASSOCIATION, as a Lender By: /s/ ELLIOT J. JAFFEE -------------------------------------- Title: Senior Vice President ----------------------------------- THE CHASE MANHATTAN BANK, as a Lender By: /s/ CAROL A. KORNBLUTH -------------------------------------- Title: Vice President ----------------------------------- 4. 5 THE BANK OF NEW YORK, as a Lender By: /s/ KRISTEN E. TALABER -------------------------------------- Title: Vice President ----------------------------------- BNP PARIBAS, as a Lender By: -------------------------------------- Title: ----------------------------------- BEAR STEARNS CORPORATE LENDING INC., as a Lender By: -------------------------------------- Title: ----------------------------------- CITIZENS BANK OF MASSACHUSETTS, as a Lender By: /s/ ERRIN SIAGEL -------------------------------------- Title: V.P. ----------------------------------- THE ROYAL BANK OF SCOTLAND PLC, as a Lender By: /s/ LEE MORSE -------------------------------------- Title: Vice President ----------------------------------- 5. 6 GUARANTOR ACKNOWLEDGMENT AND CONSENT The undersigned, each a Guarantor with respect to Borrower's Obligations to Administrative Agent and the Lenders under the terms of the Credit Agreement, each hereby (i) acknowledge and consent to the execution, delivery and performance by Borrower of the foregoing Amendment to Credit Agreement dated as of March ___, 2001 (the "Amendment"), and (ii) reaffirm and agree that the respective Guaranty as to which each of the undersigned is party, and all other Loan Documents and agreements executed and delivered by the undersigned to Administrative Agent and the Lenders in connection with the Credit Agreement, are in full force and effect without defense, offset or counterclaim. All capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Credit Agreement. This Guarantor Acknowledgment and Consent 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 instrument. NEW CERIDIAN CORPORATION By: /s/ JOHN H. GRIERSON ------------------------------------- Title: Vice President and Treasurer --------------------------------- ARBITRON HOLDINGS INC. By: /s/ JOHN H. GRIERSON ------------------------------------- Title: Vice President and Treasurer --------------------------------- 6. 7 SCHEDULE 5.21 CAPITALIZATION; SUBSIDIARIES Information as of the Effectiveness Date 1. Borrower's capitalization as of the Effectiveness Date: No. shares authorized: 500,000,000 No. shares issued: 161,685,596 No. shares outstanding: 145,681,462 Please note that the shares listed above are subject to a reverse stock split at a ratio of one-for-five. The reverse stock split will be effective immediately after the Spin-Off Consummation Date. 2. Following is a list of Borrower's Subsidiaries as of the Effectiveness Date:

7. 8

8. 9

3. Following is a list of Borrower's Arbitron Subsidiaries as of the Effectiveness Date:

9. 10 4. Following is a list of Borrower's Material Subsidiaries as of the Effectiveness Date:

Information as of the Spin-Off Consummation Date 1. Following is a list of Borrower's Arbitron Subsidiaries after the Spin-Off Consummation Date:

2. There will not be any Material Subsidiaries of the Borrower as of the Spin-Off Consummation Date. 10.