Execution Version
SECOND RESTATEMENT AGREEMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND RESTATEMENT AGREEMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 1, 2021 (this “Agreement”), among EVO PAYMENTS INTERNATIONAL, LLC, a Delaware limited liability company (the “Borrower”), the Guarantors identified on the signature pages hereto, CITIBANK, N.A., as administrative agent (in such capacity, the “Existing Administrative Agent”) and Issuing Bank, TRUIST BANK, as Successor Administrative Agent (as defined below), certain Lenders (as defined below) party hereto constituting the Required Lenders under, and as defined in, the Credit Agreement (as defined below).
WHEREAS, the Borrower and the Guarantors have previously entered into that certain Amended and Restated First Lien Credit Agreement dated June 14, 2018 (as it may be further amended, restated, supplemented and/or otherwise modified prior to the Second Restatement Effective Date referred to below, the “Credit Agreement”), among, inter alia, the Borrower, the Guarantors, the Existing Administrative Agent and the lenders from time to time party thereto (the “Lenders”);
WHEREAS, Section 11.2 of the Credit Agreement permits amendments with the written consent of the Administrative Agent, the Borrower and the Lenders providing the relevant Replacement Term Loans to permit the refinancing of all outstanding Term Loans of any Class;
WHEREAS, the Borrower desires to incur new term “A” loans, the proceeds of which will be used to refinance and repay in full all of the Term Loans outstanding immediately prior to the Second Restatement Effective Date (the “Existing Term Loans” and the Lenders thereto, the “Existing Term Lenders”);
WHEREAS, on the Second Restatement Effective Date, each institution listed on Schedule I hereto (hereinafter each, an “Term Lender”) will make Replacement Term Loans (hereinafter, the “Term Loans”) to the Borrower in the amount set forth opposite its name under the heading “Term Loan Commitment” on Schedule I hereto, the proceeds of which will be used by the Borrower to refinance and repay in full the outstanding principal amount of Existing Term Loans, and the Borrower shall pay to each Existing Term Lender all accrued and unpaid interest on the Existing Term Loans to, but not including, the Second Restatement Effective Date (the “Payoff Amount”);
WHEREAS, the Borrower desires to amend the terms of the Revolving Commitments outstanding immediately prior to the Second Restatement Effective Date and each Revolving Lender party hereto consents to such terms;
WHEREAS, the Loan Parties, the Existing Administrative Agent, the Lenders party hereto constituting the Required Lenders have agreed to amend and restate the Credit Agreement in its entirety to read as set forth in the form of the Second Amended and Restated Credit Agreement attached hereto as Exhibit A (including all schedules and exhibits attached thereto), the “Second Amended and Restated Credit Agreement”) on the Second Restatement Effective Date to, among other things, incorporate the transactions described in these Recitals;
WHEREAS, pursuant to that certain Resignation and Appointment Agreement to be dated as of the date hereof (which shall be substantially in the form attached hereto as Exhibit B, the “Resignation and Appointment Agreement”), the Existing Administrative Agent desires to and thereby agrees to resign as administrative agent effective as of the date hereof, the Lenders party hereto (which constitute the Required Lenders) and the Borrower desire to appoint Truist Bank, as administrative agent in such capacity (the “Successor Administrative Agent”) and Truist Bank desires to serve as the Successor Administrative Agent from and after the date hereof;
WHEREAS, the Loan Parties expect to realize substantial direct and indirect benefits as a result of the Second Amended and Restated Credit Agreement becoming effective and the consummation of the transactions contemplated thereby and desires to reaffirm their obligations pursuant to the Collateral Documents to which they are parties; and
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
2
3
Without limiting the generality of the provisions of Section 9.1 of the Second Amended and Restated Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 3, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Successor Administrative Agent shall have received notice from such Lender prior to the proposed Second Restatement Effective Date specifying its objection thereto.
Pursuant to Section 9.7 of the Credit Agreement, the Existing Administrative Agent hereby delivers notice to each of the Lenders and the Borrower that, effective upon the Second Restatement Effective Date, the Existing Administrative Agent hereby resigns as Administrative Agent under the Second Amended and Restated Credit Agreement and the other Loan Documents. The Required Lenders hereby appoint the Successor Administrative Agent as successor Administrative Agent effective upon the Second Restatement Effective Date, the Borrower hereby consents to the Successor Administrative Agent’s appointment as successor Administrative Agent as of the Second Restatement Effective Date, the Successor Administrative Agent hereby accepts such appointment as of the Second Restatement Effective Date and the Lenders party hereto irrevocably direct the Existing Administrative Agent to execute the Resignation and Appointment Agreement on the Second Restatement Effective Date. In addition, each of the parties hereto agree that effective as of the Second Restatement Effective Date, (i) the Successor Administrative Agent shall succeed to the rights, powers and duties of the Existing Administrative Agent as set forth in the Second Amended and Restated Credit Agreement and the other Loan Documents, (ii) the Existing Administrative Agent shall assign to the Successor Administrative Agent all of its rights, obligations and other interests (other than any of its rights and indemnities which expressly survive the resignation of the Existing Administrative Agent in accordance with Section 11.9 of the Second Amended and Restated Credit Agreement) (collectively, the “Administrative Agency Interests”) as the Administrative Agent under the Second Amended and Restated Credit Agreement and the other Loan Documents and effective as of the Second Restatement Effective Date the Successor Administrative Agent hereby assumes
4
the Administrative Agency Interests, (iii) the Existing Administrative Agent shall be released from all duties and obligations and (iv) any notice requirements in connection with the Resignation and Appointment are deemed to be satisfied by this Agreement and any other time periods or requirements in connection therewith are waived. The Lenders, Issuing Banks, the Borrower and the other Loan Parties hereby (a) waive any notice period under Section 9.7 of the Credit Agreement required before the resignation by the Existing Administrative Agent may become effective and (b) on or after the Second Restatement Effective Date, authorize each of the Borrower, the Existing Administrative Agent, and the Successor Administrative Agent, to enter into the Resignation and Appointment Agreement and any instruments and ancillary documents related thereto, and authorize the Existing Administrative Agent and the Successor Administrative Agent to perform such actions as each of the Existing Administrative Agent and Successor Administrative Agent determines are necessary thereunder to give effect to this Section 4.
5
6
[Remainder of page intentionally blank.]
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized officers, all as of the date and year first above written.
| EVO PAYMENTS INTERNATIONAL, LLC, as Borrower By: /s/ Thomas Panther EVO INTERNATIONAL EUROPE, LLC, as a Guarantor By: /s/ Brendan Tansill EVO MERCHANT SERVICES, LLC, as a Guarantor By: /s/ Brendan Tansill ENCORE PAYMENT SYSTEMS, LLC, as a Guarantor By: /s/ Brendan Tansill VISION PAYMENT SOLUTIONS, LLC, as a Guarantor By: /s/ Brendan Tansill |
[Signature Page to Second Restatement Agreement]
NATIONWIDE PAYMENT SOLUTIONS, LLC, as a Guarantor By: /s/ Brendan Tansill COMMERCE PAYMENT GROUP, LLC, as a Guarantor By: /s/ Brendan Tansill POWERPAY, LLC, as a Guarantor By: /s/ Brendan Tansill | |
| E-ONLINEDATA, LLC, as a Guarantor By: /s/ Brendan Tansill ZENITH MERCHANT SERVICES, LLC, as a Guarantor By: /s/ Brendan Tansill PINEAPPLE PAYMENTS, LLC, as a Guarantor By: /s/ Brendan Tansill |
[Signature Page to Second Restatement Agreement]
EVO GROUP MANAGEMENT, INC, as a Guarantor By: /s/ Brendan Tansill STERLING PAYMENT TECHNOLOGIES, LLC, as a Guarantor By: /s/ Brendan Tansill Name:Brendan F. Tansill Federated Payment Systems, LLC, as a Guarantor By: /s/ Brendan Tansill Nodus Technologies, Inc., as a Guarantor By: /s/ Brendan Tansill | |
| |
| |
| |
| |
| |
| |
|
[Signature Page to Second Restatement Agreement]
| CITIBANK, N.A., as Existing Administrative Agent and Issuing Bank By: /s/ Marina Donskaya |
| |
[Signature Page to Second Restatement Agreement]
| |
| TRUIST BANK, as Successor Administrative Agent, Term Lender, Revolving Lender and Issuing Bank By:/s/ Cynthia Burton |
[Signature Page to Second Restatement Agreement]
| |
| The Governor and Company of the Bank of Ireland, as Term Lender and Revolving Lender By:/s/ Christopher Dick By:/s/ Frank Schmitt |
[Signature Page to Second Restatement Agreement]
| |
| Citizens Bank, N.A., as Term Lender, Revolving Lender and Issuing Bank By:/s/ Tyler Stephens |
[Signature Page to Second Restatement Agreement]
| |
| WELLS FARGO BANK, N.A., as Term Lender, Revolving Lender and Issuing Bank By:/s/ Nathan Paouncic |
[Signature Page to Second Restatement Agreement]
| |
| Fifth Third Bank, National Association, as Term Lender, Revolving Lender and Issuing Bank By:/s/ Greg Cappel |
[Signature Page to Second Restatement Agreement]
| |
| Regions Bank, as Term Lender, Revolving Lender and Issuing Bank By:/s/ Katherine Jomantas |
[Signature Page to Second Restatement Agreement]
| |
| Bank of America, N.A., as Revolving Lender and Issuing Bank By:/s/ Jonathan Pfeifer |
[Signature Page to Second Restatement Agreement]
| |
| JP MORGAN CHASE BANK, N.A., as Term Lender, Revolving Lender and Issuing Bank By:/s/ Bruce S. Borden |
[Signature Page to Second Restatement Agreement]
| |
| CITIBANK, NA, as Term Lender and Revolving Lender By:/s/ Marina Donskaya |
[Signature Page to Second Restatement Agreement]
| |
| Capital One, National Association, as Term Lender and Revolving Lender By:/s/ Elizabeth Masciopinto |
[Signature Page to Second Restatement Agreement]
| |
| MUFG BANK, LTD, as Term Lender and Revolving Lender By:/s/ George Stoecklein |
[Signature Page to Second Restatement Agreement]
| |
| Royal Bank of Canada, as Term Lender, Revolving Lender and Issuing Bank By:/s/ Kamran Khan |
[Signature Page to Second Restatement Agreement]
| |
| US BANK NATIONAL ASSOCIATION, as Term Lender, Revolving Lender and Issuing Bank By:/s/ Marshall M. Stuart |
[Signature Page to Second Restatement Agreement]
| |
| BankUnited, N.A., as Term Lender, Revolving Lender and Issuing Bank By:/s/ Jeff Landroche |
[Signature Page to Second Restatement Agreement]
| |
| CIT Bank, as Term Lender, Revolving Lender and Issuing Bank By:/s/ Christopher O’Keefe |
[Signature Page to Second Restatement Agreement]
| |
| Synovus Bank, as Term Lender, Revolving Lender and Issuing Bank By:/s/ Robert Haley |
[Signature Page to Second Restatement Agreement]
| |
| Associated Bank, N.A., as Term Lender and Revolving Lender and Issuing Bank By:/s/ Scott Savidan |
[Signature Page to Second Restatement Agreement]
| Cadence Bank, as Term Lender, Revolving Lender and Issuing Bank By:/s/ Priya Iyer |
[Signature Page to Second Restatement Agreement]
EXHIBIT A TO RESTATEMENT AGREEMENT
Execution Version
SECOND Amended and Restated Credit Agreement
dated as of November 1, 2021
among
EVO PAYMENTS INTERNATIONAL, LLC,
as the Borrower
THE SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,
as the Guarantors
THE LENDERS FROM TIME TO TIME PARTY HERETO,
TRUIST BANK,
as Administrative Agent and Issuing Bank
CITIZENS BANK, N.A.,
FIFTH THIRD BANK,
REGIONS CAPITAL MARKETS, A DIVISION OF REGIONS BANK
and
Wells Fargo Bank, N.A.,
as Co-Syndication Agents
===================================================================
TRUIST SECURITIES, INC.,
bofa sECURITIES, INC.,
CITIZENS BANK, N.A.,
FIFTH THIRD BANK,
JPMORGAN CHASE BANK, N.A.,
REGIONS CAPITAL MARKETS
and
Wells Fargo Securities, LLC
as Joint Lead Arrangers
TRUIST SECURITIES, INC.,
CITIZENS BANK, N.A.,
FIFTH THIRD BANK,
REGIONS CAPITAL MARKETS, A DIVISION OF REGIONS BANK
and
Wells Fargo Securities, LLC
as Joint Bookrunners
bofa sECURITIES, INC.,
Capital One, National Association
CITIBANK, N.A.,
JPMORGAN CHASE BANK, N.A.,
MUFG BANK, LTD.
ROYAL BANK OF CANADA
and
U.S. BANK NATIONAL ASSOCIATION
as Co-Documentation Agents
TABLE OF CONTENTS
Page
Article I DEFINITIONS; CONSTRUCTION1
Section 1.1Definitions1
Section 1.2Classifications of Loans and Borrowings53
Section 1.3Accounting Terms and Determination54
Section 1.4Terms Generally54
Section 1.5Exchange Rates; Currency Equivalents55
Section 1.6Change of Currency55
Section 1.7Limited Condition Acquisition55
Section 1.8Timing of Payment and Performance56
Section 1.9Specified Baskets56
Section 1.10Divisions.56
Article II AMOUNT AND TERMS OF THE COMMITMENTS56
Section 2.1General Description of Facilities56
Section 2.2Revolving Loans56
Section 2.3Procedure for Revolving Borrowings57
Section 2.4[Reserved]57
Section 2.5Term Loans57
Section 2.6Funding of Borrowings58
Section 2.7Interest Elections58
Section 2.8Optional Reduction and Termination of Commitments59
Section 2.9Repayment of Loans59
Section 2.10Evidence of Indebtedness60
Section 2.11Optional Prepayments61
Section 2.12Mandatory Prepayments68
Section 2.13Interest on Loans72
Section 2.14Fees73
Section 2.15Computation of Interest and Fees74
Section 2.16Inability to Determine Interest Rates74
Section 2.17Illegality77
Section 2.18Increased Costs77
Section 2.19Funding Indemnity78
Section 2.20Taxes79
Section 2.21Payments Generally; Pro Rata Treatment; Sharing of Set-offs82
Section 2.22Letters of Credit84
Section 2.23Increase of Commitments; Additional Lenders89
Section 2.24Mitigation of Obligations94
Section 2.25Replacement of Lenders94
Section 2.26Reallocation and Cash Collateralization of Defaulting Lender Commitment95
Section 2.27Refinancing Amendments96
Section 2.28Extension of Term Loans; Extension of Revolving Commitments97
Section 2.29Designated Borrowers100
Article III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT101
i
Section 3.1[Reserved]101
Section 3.2Credit Event after the Restatement Effective Date101
Article IV REPRESENTATIONS AND WARRANTIES102
Section 4.1Existence; Power102
Section 4.2Organizational Power; Authorization102
Section 4.3Governmental Approvals; No Conflicts103
Section 4.4Material Adverse Effect103
Section 4.5Litigation and Environmental Matters103
Section 4.6Compliance with Laws103
Section 4.7Investment Company Act103
Section 4.8Taxes103
Section 4.9Margin Regulations104
Section 4.10ERISA104
Section 4.11Ownership of Property104
Section 4.12Disclosure104
Section 4.13Labor Relations105
Section 4.14Subsidiaries105
Section 4.15Solvency105
Section 4.16[Reserved]105
Section 4.17Anti-Corruption Laws and Sanctions105
Section 4.18Patriot Act105
Section 4.19Affected Financial Institution105
Article V AFFIRMATIVE COVENANTS106
Section 5.1Financial Statements and Other Information106
Section 5.2Notices of Material Events107
Section 5.3Existence; Conduct of Business108
Section 5.4Compliance with Laws, Etc.108
Section 5.5Payment of Obligations108
Section 5.6Books and Records108
Section 5.7Visitation, Inspection, Etc108
Section 5.8Maintenance of Properties; Insurance109
Section 5.9Use of Proceeds and Letters of Credit109
Section 5.10Permitted BIN Arrangement109
Section 5.11Further Assurances109
Section 5.12Designation of Subsidiaries111
Section 5.13Government Regulation111
Article VI FINANCIAL COVENANTS111
Section 6.1Consolidated Leverage Ratio112
Section 6.2Right to Cure112
Article VII NEGATIVE COVENANTS113
Section 7.1Indebtedness and Preferred Equity113
Section 7.2Liens115
Section 7.3Fundamental Changes117
ii
Section 7.4Investments, Loans, Etc.118
Section 7.5Restricted Payments119
Section 7.6Dispositions121
Section 7.7Transactions with Affiliates122
Section 7.8Restrictive Agreements122
Section 7.9Sale and Leaseback Transactions124
Section 7.10Hedging Transactions124
Section 7.11Amendment to Material Documents124
Section 7.12Payments of Certain Indebtedness124
Section 7.13Use of Proceeds in Violation of Anti-Corruption Laws or Sanctions125
Article VIII EVENTS OF DEFAULT125
Section 8.1Events of Default125
Section 8.2Application of Funds128
Article IX THE ADMINISTRATIVE AGENT129
Section 9.1Appointment of Administrative Agent129
Section 9.2Nature of Duties of Administrative Agent129
Section 9.3Lack of Reliance on the Administrative Agent130
Section 9.4Certain Rights of the Administrative Agent130
Section 9.5Reliance by Administrative Agent131
Section 9.6The Administrative Agent in its Individual Capacity131
Section 9.7Successor Administrative Agent131
Section 9.8Withholding Tax132
Section 9.9Benefits of Article IX132
Section 9.10Administrative Agent May File Proofs of Claim132
Section 9.11Titled Agents133
Section 9.12Authorization to Execute other Loan Documents133
Section 9.13Collateral and Guaranty Matters133
Section 9.14Hedging Obligations and Bank Product Obligations134
Section 9.15Erroneous Payments.134
Article X THE GUARANTY137
Section 10.1The Guaranty137
Section 10.2Obligations Unconditional137
Section 10.3Reinstatement138
Section 10.4Certain Additional Waivers138
Section 10.5Remedies138
Section 10.6Rights of Contribution138
Section 10.7Guarantee of Payment; Continuing Guarantee139
Section 10.8Keepwell139
Article XI MISCELLANEOUS139
Section 11.1Notices139
Section 11.2Waiver; Amendments141
Section 11.3Expenses; Indemnification144
Section 11.4Successors and Assigns146
iii
Section 11.5Governing Law; Jurisdiction; Consent to Service of Process154
Section 11.6WAIVER OF JURY TRIAL154
Section 11.7Right of Setoff155
Section 11.8Counterparts; Integration155
Section 11.9Survival155
Section 11.10Severability155
Section 11.11Confidentiality156
Section 11.12Interest Rate Limitation156
Section 11.13Waiver of Effect of Corporate Seal156
Section 11.14Patriot Act157
Section 11.15No Advisory or Fiduciary Responsibility157
Section 11.16Electronic Execution of Assignments and Certain Other Documents157
Section 11.17Release of Guarantors and Collateral158
Section 11.18Judgment Currency158
Section 11.19Acknowledgement and Consent to Bail-In of Affected Financial Institutions159
Section 11.20Certain ERISA Matters159
Section 11.21Acknowledgement Regarding Any Supported QFCs161
(1).161
iv
Schedules
Schedule I | Commitment Amounts |
Schedule 2.22 | Existing Letters of Credit |
Schedule 4.14 | Subsidiaries |
Schedule 7.1 | Existing Indebtedness |
Schedule 7.2 | Existing Liens |
Schedule 7.4 | Existing Investments |
Schedule 7.5 | Certain Permitted Distributions |
Schedule 7.7 | Existing Affiliate Transactions |
Schedule 7.8 | Restrictive Agreements |
Exhibits
Exhibit 2.3 | Form of Notice of Revolving Borrowing |
Exhibit 2.7 | Form of Notice of Conversion/Continuation |
Exhibit 2.10 | Form of Note |
Exhibit 2.29(a) | Form of Designated Borrower Request and Assumption Agreement |
Exhibit 2.29(b) | Form of Designated Borrower Notice |
Exhibit 2.20 | U.S. Tax Compliance Forms (1-4) |
Exhibit 5.1 | Form of Compliance Certificate |
Exhibit 11.4(b) | Form of Assignment and Acceptance |
Exhibit 11.4(i) | Form of Affiliated Lender Assignment and Acceptance |
v
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is made and entered into as of November 1, 2021, by and among EVO PAYMENTS INTERNATIONAL, LLC, a Delaware limited liability company (“EVO” or the “Borrower”), each Subsidiary joined hereto as a “Designated Borrower” from time to time, the Guarantors (defined herein), the Lenders (defined herein), the Administrative Agent and the Issuing Bank.
W I T N E S S E T H:
WHEREAS, the Borrower is party to that certain Amended and Restated First Lien Credit Agreement, dated as of April 3, 2018, among the Borrower, the other Guarantors party thereto, the Lenders, Citibank, N.A., as Administrative Agent (as amended, restated, supplemented or otherwise modified prior to the Restatement Effective Date, the “Existing Credit Agreement”);
WHEREAS, the Required Lenders and other parties to the Second Restatement Agreement have agreed to amend and restate the Existing Credit Agreement in its entirety to read as set forth in this Agreement, and it has been agreed by such parties that the Loans and any Letters of Credit outstanding as of the Restatement Effective Date and other “Obligations” under (and as defined in) the Existing Credit Agreement (including indemnities) shall be governed by and deemed to be outstanding under this Agreement with the intent that the terms of this Agreement shall supersede the terms of the Existing Credit Agreement in their entirety, and on and after the Restatement Effective Date, all references to the Existing Credit Agreement in any Loan Document or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof; provided that (1) the grants of security interests and Liens under and pursuant to the Loan Documents shall continue unaltered to secure, guarantee, support and otherwise benefit the secured Obligations of the Borrower and the other Loan Parties under the Existing Credit Agreement as amended hereby and this Agreement and each other Loan Document and each of the foregoing shall continue in full force and effect in accordance with its terms except as expressly amended thereby or hereby or by the Restatement Agreement, and the parties hereto hereby ratify and confirm the terms thereof as being in full force and effect and unaltered by this Agreement, (2) the letters of credit identified on Schedule 2.22 hereto (the “Existing Letters of Credit”) shall be deemed to be Letters of Credit for all purposes under this Agreement and (3) it is agreed and understood that this Agreement does not constitute a novation, satisfaction, payment or reborrowing of any Obligation under the Existing Credit Agreement or any other Loan Document except as expressly modified by this Agreement, nor does it operate as a waiver of any right, power or remedy of any Lender under any Loan Document.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:
“Acceptable Discount” has the meaning set forth in (k)(ii)(D)(2).
“Acceptable Prepayment Amount” has the meaning set forth in (k)(ii)(D)(3).
“Acceptance and Prepayment Notice” shall mean a notice of the Borrower’s acceptance of the Acceptable Discount.
“Acceptance Date” has the meaning set forth in (k)(ii)(D)(2).
“Actual Amount” has the meaning given in the definition of Permitted Tax Distributions.
“Additional Lender” shall have the meaning given to such term in Section 2.23.
“Additional Refinancing Lender” shall mean, at any time, any bank, financial institution or other institutional lender or investor (other than any such bank, financial institution or other institutional lender or investor that is a Lender at such time) that agrees to provide any portion of Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.27, provided that each Additional Refinancing Lender shall be subject to the approval of (i) the Administrative Agent, such approval not to be unreasonably withheld, conditioned or delayed, to the extent that each such Additional Refinancing Lender is not then an existing Lender, an Affiliate of a then existing Lender or an Approved Fund, (ii) the Borrower and (iii) each Issuing Bank, in the case of clauses (i) and (iii), only to the extent that such consent would be required under Section 11.4(b), respectively, if the related Refinancing Term Loans, Refinancing Revolving Commitments or Refinancing Revolving Loans had been obtained by such Additional Refinancing Lender by way of assignment.
“Adjusted Daily Simple RFR” means, an interest rate per annum equal to (a) the Daily Simple RFR, plus (b) 0.0326%; provided that if the Adjusted Daily Simple RFR so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement
“Adjusted EURIBOR” shall mean, with respect to each Interest Period for a Eurodollar Borrowing denominated in Euros, the rate per annum obtained by dividing (i) EURIBOR for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar Reserve Percentage provided that if the Adjusted EURIBOR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted LIBO Rate” shall mean, with respect to each Interest Period for a Eurodollar Borrowing denominated in Dollars, the rate per annum obtained by dividing (i) LIBOR for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar Reserve Percentage provided that if the Adjusted LIBO Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative Agent” shall mean Truist Bank in its capacity as administrative agent under any of the Loan Documents, or any of its successors and permitted assigns.
“Administrative Questionnaire” shall mean, with respect to each Lender, an administrative questionnaire in the form provided by the Administrative Agent and submitted to the Administrative Agent duly completed by such Lender.
“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” shall mean, as to any Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person. For the purposes of this definition, “Control” shall mean the power, directly or indirectly, either to (i) vote 20% or more of the securities having ordinary voting power for the election of directors (or persons performing
similar functions of a Person) or (ii) to direct or cause the direction of the management and policies of a Person, whether through the ability to exercise voting power, by control or otherwise. The terms “Controlling”, “Controlled by”, and “under common Control with” have the meanings correlative thereto.
“Affiliated Debt Fund” shall mean any Affiliate of the Affiliated Lender (other than a natural person) that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course and (i) whose managers have fiduciary duties to the third-party investors in such fund or investment vehicle independent of their duties to the Borrower or the Affiliated Lenders and (ii) with respect to which the Affiliated Lender does not, directly or indirectly, possess the power to direct or cause the direction of the investments or investment policies of such entity.
“Affiliated Lender” shall mean Symphony Asset Management and any Affiliated Non-Debt Fund Entity.
“Affiliated Lender Assignment and Acceptance” has the meaning set forth in Section 11.4(i)(ii).
“Affiliated Lender Cap” has the meaning set forth in Section 11.4(i)(v).
“Affiliated Non-Debt Fund Entity” shall mean any Affiliate of the Affiliated Lender , but excluding (a) any Affiliated Debt Fund and (b) any natural Person.
“Agency Fee Letter” shall mean that certain agency fee letter, dated October 6, 2021, executed by Truist Bank and the Borrower.
“Aggregate Consideration” shall mean (i) cash and Cash Equivalents; provided, that up to the greater of (x) $3,400,000 and (y) 2.0% LTM Consolidated EBITDA shall be deemed to be cash and Cash Equivalents for purposes of this definition and (ii) any securities received by the Borrower or the applicable Restricted Subsidiary from such transferee in connection with such permitted acquisition.
“Aggregate Revolving Commitments” shall mean the Revolving Commitments of all the Lenders at any time outstanding. On the Restatement Effective Date, the aggregate amount of the Aggregate Revolving Commitments is TWO HUNDRED MILLION DOLLARS ($200,000,000.00).
“Agreement” shall mean this Credit Agreement.
“AHYDO Payment” shall mean any payment under or with respect to Indebtedness required to prevent any obligations with respect thereto from being classified as an “applicable high-yield discount obligation” under Section 163(i) of the Code, including, without limitation, any prepayments required or permitted under the terms of such Indebtedness satisfying the definition of “AHYDO Payment” in any definitive agreement related thereto (or any definitive agreement related to a Permitted Refinancing of all or any part thereof).
“All-In Yield” shall mean, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, OID, upfront fees, any Base Rate (or equivalent term) “floor” then in effect or a “LIBOR” (or equivalent term) floor then in effect or otherwise, in each case incurred or payable by the Borrower generally to all lenders of such Indebtedness; provided that OID and upfront fees shall be equated to interest rate assuming a four-year life to maturity (or, if less, the stated life to maturity at the time of its incurrence of such Indebtedness); provided, further, that “All-In Yield” shall not include arrangement fees, structuring fees, commitment or facility fees and underwriting fees or other fees not shared with all lenders providing such Indebtedness. In calculating the All-In Yield, if on the date of incurrence of any applicable
Indebtedness (including any Incremental Term Loans), such Indebtedness includes an interest rate floor greater than the interest rate floor applicable to the Term Loans, such differential shall be added to the interest rate for purposes of determining whether an increase to the interest rate margin under the Term Loans shall be required (if applicable), but only to the extent that an increase in the interest rate floor would cause an increase to the interest rate margin then in effect with respect to such Term Loans, solely for the purpose of determining the All-In Yield applicable to such Indebtedness and, in such case for purposes of Section 2.23, the interest rate floor (but not the interest rate margin) applicable to such Class of Term Loans shall be increased to the extent of such differential between interest rate floors.
“Alternative Currency” shall mean each or any of Euro, Mexican Pesos and Pounds Sterling, as applicable and as the context may require.
“Alternative Currency Equivalent” shall mean, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the Alternative Currency as determined by the Administrative Agent or Issuing Bank, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of the Alternative Currency with Dollars.
“Anti-Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to EVO or its Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Discount” has the meaning set forth in (k)(ii)(C)(2).
��Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the “Lending Office” of such Lender (or an Affiliate of such Lender) designated for such Type of Loan in the Administrative Questionnaire submitted by such Lender or such other office of such Lender (or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.
“Applicable Margin” shall mean, with respect to Revolving Loans, Letters of Credit and Term Loan, as of any date, (a percentage per annum set forth in the table below determined by reference to the Consolidated Leverage Ratio as set forth in the Compliance Certificate most recently delivered pursuant to Section 5.1(c); provided, that a change in the Applicable Margin resulting from a change in the Consolidated Leverage Ratio shall be effective on the first Business Day after which the Borrower delivers such Compliance Certificate most recently delivered pursuant to Section 5.1(c); provided further, that if at any time the Borrower shall have failed to deliver the Compliance Certificate required by Section 5.1(c), upon written notice by the Required Lenders or the Administrative Agent (at the direction of the Required Lenders), the Applicable Margin shall retroactively be deemed to be at Level 5 as set forth in the table below, for any day during the period commencing from the due date of such Compliance Certificate pursuant to Section 5.1(c) until (not including) the first Business Day after which such Compliance Certificate is delivered, at which time the Applicable Margin shall be determined as provided above. Notwithstanding the foregoing, the Applicable Margin from the Restatement Effective Date until the first Business Day after which the Compliance Certificate for the Fiscal Quarter ending March 31, 2022 is to be delivered shall be at Level 3 as set forth in the table below. In the event that any Compliance Certificate delivered hereunder is shown to be inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin based upon the pricing grid set forth in the table below (the “Accurate Applicable Margin”) for any period such financial statement or Compliance Certificate covered, then (i) the Borrower shall promptly deliver to the Administrative Agent a correct financial statement or Compliance Certificate, as the case may be, for such period, (ii) the Applicable Margin shall be adjusted such that after giving effect to the corrected Compliance Certificate, as the case may be, the Applicable Margin shall be reset to the Accurate Applicable Margin based upon the pricing grid set forth in the table
below for such period and (iii) the Borrower shall promptly pay to the Administrative Agent upon written demand from the Administrative Agent, for the account of the Lenders, the accrued additional interest owing as a result of such Accurate Applicable Margin for such period. The provisions of this definition shall not limit the rights of the Administrative Agent and the Lenders with respect to Section 2.13(c) or Article VIII.
Level | Consolidated Leverage Ratio | Eurodollar Loans and Letter of Credit fees | Base Rate Loans |
1 | ≤ 2.25:1.0 | 1.75% | 0.75% |
2 | > 2.25:1.0 ≤ 2.75:1.0 | 2.00% | 1.00% |
3 | > 2.75:1.0 ≤ 3.25:1.0 | 2.25% | 1.25% |
4 | > 3.25:1.0 ≤ 3.75:1.0 | 2.50% | 1.50% |
5 | > 3.75:1.0 | 2.75% | 1.75% |
Notwithstanding the foregoing, (v) the Applicable Margin in respect of any Class of Extended Revolving Commitments or any Extended Term Loans or Revolving Loans made pursuant to any Extended Revolving Commitments shall be the applicable percentages per annum set forth in the relevant Extension Amendment, (w) the Applicable Margin in respect of any Class of Incremental Revolving Commitments, any Class of Incremental Term Loans or any Class of Incremental Revolving Loans shall be the applicable percentages per annum set forth in the relevant Incremental Amendment, (x) the Applicable Margin in respect of any Class of Replacement Term Loans shall be the applicable percentages per annum set forth in the relevant agreement, (y) the Applicable Rate in respect of any Class of Refinancing Revolving Commitments, any Class of Refinancing Revolving Loans or any Class of Refinancing Term Loans shall be the applicable percentages per annum set forth in the Refinancing Amendment or other relevant agreement and (z) in the case of the Term Loans, the Applicable Rate shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.23.
“Applicable Time” shall mean, with respect to any borrowings and payments in the Alternative Currency, the local time in the place of settlement for the Alternative Currency as may be determined by the Administrative Agent or the Issuing Bank, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“Applicant Borrower” has the meaning set forth in Section 2.29(a).
“Appropriate Lender” shall mean, at any time, (a) with respect to Loans of any Class, the Lenders of such Class and (b) with respect to Letters of Credit, (i) the relevant Issuing Bank and (ii) the Revolving Lenders.
“Approved Fund” shall mean any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arranger” shall mean collectively, Truist Securities, Inc., BOFA Securities, INC., Citizens Bank, N.A., Fifth Third Bank, JPMorgan Chase Bank, N.A., Regions Capital Markets, a division of Regions Bank, and Wells Fargo Securities, LLC, collectively, in their capacities as joint lead arrangers.
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 11.4(b)) and accepted by the Administrative Agent, substantially in the form of Exhibit 11.4(b) attached hereto or any other form approved by the Administrative Agent.
“Attributable Indebtedness” shall mean, with respect to any Person on any date, (a) in respect of any Capital Lease Obligation, 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, 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 Obligation, (c) in respect of any Securitization Transaction, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment and (d) in respect of any Sale and Leaseback Transaction, the present value (discounted in accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the lessee for rental payments during the term of such lease.
“Auction Agent” shall mean (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Term Loan Prepayment pursuant to (k)(ii); provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent).
“Availability Period” shall mean the period from the Restatement Effective Date to but excluding the Revolving Commitment Termination Date.
“Available Additional Basket” shall mean (i) the greater of (x) $17,000,000 and (y) 10% of Consolidated EBITDA, plus (ii) commencing with the Fiscal Year ending December 31, 2022, the portion of Consolidated Excess Cash Flow not required to be applied to prepay the Term Loans hereunder, plus (iii) the aggregate amount of Declined Proceeds retained by the Borrower after the Restatement Effective Date and on or prior to such date, plus (iv) returns, profits, distributions and similar amounts on Investments made using the Available Additional Basket, in each case after the Restatement Effective Date, plus (v) the amount of any Investment made using the Available Additional Basket in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated into the Borrower or any of its Restricted Subsidiaries, or the fair market value of the assets of any Unrestricted Subsidiary that have been transferred to the Borrower or any of its Restricted Subsidiaries, in each case after the Restatement Effective Date and on or prior to such date plus (vi) the Net Cash Proceeds of sales of Investments made using the Available Additional Basket, in each case after the Restatement Effective Date less, in the case of each of the foregoing clauses (i) through (vi), amounts previously utilized of such Available Additional Basket, in each case after the Restatement Effective Date.
“Available Cash” shall mean, at any date of determination, with respect to the Borrower and its Restricted Subsidiaries, (i) unrestricted cash less (ii) merchant reserves less (iii) settlement cash less and (iv) adjusted (whether positive or negative) for cash pending receipt from card brand or card schemes as reported in the Evo Payment, Inc.’s most recent publicly filed quarterly earnings release.
“Available Equity Basket” shall mean, at any date of determination, a cumulative amount of cash and Cash Equivalents equal to (i) the Net Cash Proceeds of equity issuances and capital contributions, the cash proceeds of which are contributed to Borrower or any of its Restricted Subsidiaries in respect of its Qualified Capital Stock (and that do not include any equity contributed in connection with the Borrower exercising its Cure Right or in connection with Contribution Indebtedness) after the Restatement Effective Date and on or prior to such date, plus (ii) the Net Cash Proceeds of Indebtedness and Disqualified Capital Stock that has been exchanged or converted into Qualified Capital Stock of the Borrower or its direct or indirect parent entity, together with any cash or Cash Equivalents received upon such exchange or conversion, received after the Restatement Effective Date and on or prior to such date by the Borrower, plus (iii) returns, profits, distributions and similar amounts received after the Restatement Effective Date
and on or prior to such date in cash or Cash Equivalents by the Borrower and the Restricted Subsidiaries on Investments made using the Available Equity Basket (not to exceed the amount of such Investments), less, in each case of the foregoing clauses (i) through (iii), amounts above utilized for permitted purposes under this Agreement in reliance on the Available Equity Basket, in each case after the Restatement Effective Date.
“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for such Benchmark that is or may be used for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date.
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” shall mean, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act of 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank Product Amount” shall have the meaning set forth in the definition of “Bank Product Provider”.
“Bank Product Obligations” shall mean, collectively, all obligations and other liabilities of any Loan Party to any Bank Product Provider arising with respect to any Bank Products.
“Bank Product Provider” shall mean any Person that, at the time it provides any Bank Products to any Loan Party, (a) is a Lender or an Affiliate of a Lender and (b) except when the Bank Product Provider is Truist Bank (or prior to the Restatement Effective Date, Citibank, N.A.) and its Affiliates, has provided prior written notice to the Administrative Agent which has been acknowledged by the Borrower of (i) the existence of such Bank Product, (ii) the maximum dollar amount of obligations arising thereunder (the “Bank Product Amount”) and (iii) the methodology to be used by such parties in determining the obligations under such Bank Product from time to time. In no event shall any Bank Product Provider acting in such capacity be deemed a Lender for purposes hereof to the extent of and as to Bank Products and in no event shall the approval of any such person in its capacity as Bank Product Provider be required in connection with the release or termination of any security interest or other Lien purported to be created under any Loan Document. The Bank Product Amount may be changed from time to time upon written notice to the Administrative Agent by the applicable Bank Product Provider to the extent acknowledged by the Borrower.
“Bank Products” shall mean any of the following services provided to any Loan Party by any Bank Product Provider: (a) any treasury or other cash management services, including deposit accounts, automated clearing house (ACH) origination and other funds transfer, depository (including cash vault and check deposit), zero balance accounts and sweeps, return items processing, controlled disbursement accounts, positive pay, lockboxes and lockbox accounts, account reconciliation and information reporting, payables outsourcing, payroll processing, trade finance services, investment accounts and securities accounts, and (b) card services, including credit card (including purchasing card and commercial card),
prepaid cards, including payroll, stored value and gift cards, merchant services processing, and debit card services.
“Base Rate” shall mean the highest of (a) the rate which the Administrative Agent announces from time to time as its prime lending rate, as in effect from time to time, (b) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (½%) per annum and (c) the Adjusted LIBO Rate determined on a daily basis for an Interest Period of one (1) month, plus one percent (1.00%) per annum (any changes in such rates to be effective as of the date of any change in such rate); provided that, if the Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. The Administrative Agent’s prime lending rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent may make commercial loans or other loans at rates of interest at, above, or below the Administrative Agent’s prime lending rate. Loans bearing interest at the Base Rate shall only be made in Dollars.
“Benchmark” means, initially, the Relevant Rate; provided that if a Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to the applicable Relevant Rate or the then-current Benchmark for Dollars, Euros or Pounds Sterling, as applicable, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.16.
“Benchmark Replacement” means, for any Available Tenor the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date (provided that, in the case of any Loan denominated in Euros, Pounds Sterling or Mexican Pesos, “Benchmark Replacement” shall mean the alternative set forth in clause (2) below):
(1) the first alternative set forth below that can be determined by the Administrative Agent:
(a)the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, and 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, or;
(b) the sum of: (i) Daily Simple SOFR and (ii) the spread adjustment selected or recommended by the Relevant Governmental Body for the replacement of the tenor of LIBOR with a SOFR-based rate having approximately the same length as the interest payment period specified in clause (a); and
(2) the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower as the replacement for such Available Tenor of such Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time;
provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides
may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Transition Event” means, with respect to any then-current Benchmark other than LIBOR, the occurrence of one or more of the following events with respect to the then-current Benchmark a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof) or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.
“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.16 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.16.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” shall mean any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BIN/ISO Agreements” shall mean (a) any sponsorship, depository, processing or similar agreement with a bank or financial institution providing for the use of such bank or financial institution’s BIN or ICA (or similar mechanism) to clear credit card transactions through one or more card associations, or (b) any agreement with any independent sales organization or similar entity related to, or providing for, payments processing to merchant customers.
“Borrower” shall mean, collectively or individually, as applicable, EVO and any direct or indirect wholly owned Domestic Subsidiaries of EVO that EVO has designated as a “Designated Borrower” hereunder pursuant to Section 2.29.
“Borrower Offer of Specified Discount Prepayment” shall mean the offer by the Borrower or a Restricted Subsidiary to make a voluntary prepayment of Term Loans at a Specified Discount to par pursuant to (k)(ii)(B).
“Borrower Solicitation of Discount Range Prepayment Offers” shall mean the solicitation by the Borrower or a Restricted Subsidiary of offers for, and the corresponding acceptance by a Lender of, a voluntary prepayment of Term Loans at a specified range of discounts to par pursuant to (k)(ii)(C).
“Borrower Solicitation of Discounted Prepayment Offers” shall mean the solicitation by the Borrower or a Restricted Subsidiary of offers for, and the subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Term Loans at a discount to par pursuant to (k)(ii)(D).
“Borrowing” shall mean a borrowing consisting of Loans of the same Class and Type, made, converted or continued on the same date and in the case of Eurodollar Loans, denominated in the same currency and as to which a single Interest Period is in effect.
“Business Day” shall mean any day other than (a) a Saturday, Sunday or other day on which commercial banks in Atlanta, Georgia or New York, New York are authorized or required by Law to close and (b) if such day relates to a Borrowing of, a payment or prepayment of principal or interest on, a conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice with respect to any of the foregoing, any day on which banks are not open for dealings in Dollar or Euro deposits in the London interbank market.
“Capital Expenditures” shall mean for any period, without duplication, (a) the aggregate of all expenditures by the Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are, or are required to be, included as capital expenditures on the consolidated statement of cash flows of the Borrower for such period and (b) Capital Lease Obligations incurred by the Borrower and its Restricted Subsidiaries during such period.
“Capital Lease Obligations” of any Person shall mean all obligations of such Person to pay rent or other amounts under any lease (or other arrangement conveying the right to use) of real or personal property, or a combination thereof, which obligations are required under GAAP to be classified and accounted for as capital leases on a balance sheet of such Person, and the amount of such obligations shall be limited to the capitalized amount thereof.
“Capital Stock” shall mean all shares, options, warrants, general or limited partnership interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934).
“Cash Collateralize” shall mean, in respect of any obligations, to provide and pledge cash collateral for such obligations in Dollars, to the Administrative Agent pursuant to documentation in form and substance, reasonably satisfactory to the Administrative Agent (and “Cash Collateralization” and “Cash Collateral” have a corresponding meaning).
“Cash Equivalent” shall mean:
direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States (or by any agency thereof to the extent such obligations
are backed by the full faith and credit of the United States), in each case maturing within one year from the date of acquisition thereof;
commercial paper having the highest rating, at the time of acquisition thereof, of S&P or Moody’s and in either case maturing within six months from the date of acquisition thereof;
certificates of deposit, bankers’ acceptances and time deposits maturing within one hundred eighty (180) days of the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the Laws of the United States or any state thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above;
mutual funds investing solely in any one or more of the Cash Equivalents described in clauses (a) through (d) above;
cash and cash equivalents as determined in accordance with GAAP; and/or
in the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held by it from time to time in the ordinary course of business and not for speculation.
In the case of a Foreign Subsidiary that is a Restricted Subsidiary or Cash Equivalents made in a country outside the United States of America, Cash Equivalents shall also include (i) investments of the types and maturities described in clauses (a) through (f) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign ratings agencies and (ii) other short-term investments utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (a) through (f) and in this paragraph.
“CBR Loan” means a Loan that bears interest at a rate determined by reference to the Central Bank Rate.
“CBR Spread” means the Applicable Margin applicable to such Loan that is replaced by a CBR Loan.
“Central Bank Rate” means, (A) the greater of (i) for any Loan denominated in (a) Pounds Sterling, the Bank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any successor thereto) from time to time and (b) Euro, one of the following three rates as may be selected by the Administrative Agent in its reasonable discretion: (1) the fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any successor thereto) from time to time, (2) the rate for the marginal lending facility of the European Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (3) the rate for the deposit facility of the central banking system of the Participating Member States, as published by the European Central Bank (or any successor thereto) from time to time and (ii) the Floor; plus (B) the applicable Central Bank Rate Adjustment.
“Central Bank Rate Adjustment” means, for any day, for any Loan denominated in (a) Euro, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of EURIBOR for the five most recent Business Days preceding such day for which the EURIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowest EURIBOR applicable during such period of five Business Days) minus (ii) the Central Bank Rate in respect of Euro in effect on the last Business Day in such period and (b) Pounds Sterling, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of Adjusted Daily Simple RFR for Pounds Sterling Borrowings for the five (5) most recent RFR Business Days preceding such day for which SONIA was available (excluding, from such averaging, the highest and the lowest Adjusted Daily Simple RFR applicable during such period of five (5) RFR Business Days) minus (ii) the Central Bank Rate in respect of Pounds Sterling in effect on the last RFR Business Day in such period. For purposes of this definition, (x) the term Central Bank Rate shall be determined disregarding clause (B) of the definition of such term and (y) EURIBOR on any day shall be based on the EURIBOR Screen Rate on such day at approximately the time referred to in the definition of such term for deposits in the applicable currency for a maturity of one month; provided that if such rate shall be less than 0.00%, such rate shall be deemed to be 0.00%.
“Change in Control” shall mean the occurrence of any event or series of events by which, (i) any person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Restatement Effective Date) (but excluding (x) any employee benefit plan of such person and its Subsidiaries and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan and (y) any combination of Permitted Holders, shall have, directly or indirectly, acquired beneficial ownership of Capital Stock of EVO Payments, Inc.) representing 40% or more of the aggregate voting power represented by the issued and outstanding Capital Stock of Evo Payments, Inc. and the Permitted Holders shall own, directly or indirectly, less than such person or “group” of the aggregate voting power represented by the issued and outstanding Capital Stock of the Evo Payments, Inc. (provided, however, that in no instance shall a Change in Control be deemed to have occurred as a result of the forfeiture and cancellation of the Class B Common Stock of EVO Payments, Inc., or the conversion of the Class C Common Stock into Class D Common Stock of EVO Payments, Inc., in accordance with the terms of the Amended and Restated Certificate of Incorporation of EVO Payments, Inc. as in effect on Restatement Effective Date) or (ii) the Borrower shall cease to beneficially own and control in the aggregate, directly or indirectly, on a fully diluted basis, 100% of the Capital Stock of EVO Merchant Services, LLC.
“Change in Law” shall mean (a) the adoption of any applicable Law after the date of this Agreement, (b) any change in any applicable Law after the date of this Agreement, or (c) compliance by any Lender (or its Applicable Lending Office) or the Issuing Bank (or for purposes of Section 2.18(b), by the Parent Company of such Lender or the Issuing Bank, if applicable) with any request, guideline or directive (whether or not having the force of Law) of any Governmental Authority made or issued after the date of this Agreement. Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act, and all requests, rules, guidelines and directives promulgated thereunder, and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, in each case, are deemed to have been introduced or adopted after the date hereof, regardless of the date enacted or adopted.
“Class” (a) when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Commitments, Extended Revolving Commitments of a given Extension Series, Incremental Revolving Commitments, Refinancing Revolving Commitments of a given Refinancing Series, Term Commitments, Incremental Term Commitments, Refinancing Term Commitments of a given Refinancing Series or Commitments in respect of Replacement
Term Loans and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Loans, Revolving Loans under Extended Revolving Commitments of a given Extension Series, Incremental Revolving Loans, Revolving Loans under Refinancing Revolving Commitments of a given Refinancing Series, Term Loans, Extended Term Loans of a given Extension Series, Incremental Term Loans, Refinancing Term Loans of a given Refinancing Series or Replacement Term Loans. Revolving Loans, Revolving Loans under Extended Revolving Commitments of a given Extension Series, Revolving Loans under Refinancing Revolving Commitments of a given Refinancing Series, Term Loans, Extended Term Loans of a given Extension Series, Incremental Term Loans, Refinancing Term Loans of a given Refinancing Series or Replacement Term Loans (together with the respective Commitments in respect thereof) shall, at the election of the Borrower, be construed to be in different Classes; provided that any Incremental Loans effected as a Term Loan Increase or a Revolving Commitment Increase to any existing Class of Term Loans or Revolving Loans, respectively, and such existing Class of Term Loans or Revolving Loans, as applicable, shall in all events be part of the same Class.
“Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from time to time.
“Collateral” shall mean a collective reference to all real and personal property with respect to which Liens in favor of the Administrative Agent, for the benefit of itself and the holders of the Obligations, are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents.
“Collateral Documents” shall mean a collective reference to the Security Agreement and any other security documents executed and delivered by any Loan Party pursuant to Section 5.11.
“Commitment” shall mean a Revolving Commitment, Extended Revolving Commitment of a given Extension Series, Incremental Revolving Commitment, Refinancing Revolving Commitment of a given Refinancing Series, Initial Term Commitment, Incremental Term Commitment, Refinancing Term Commitment of a given Refinancing Series or Commitment in respect of Replacement Term Loans or any combination thereof (as the context shall permit or require).
“Commitment Fee” shall have the meaning set forth in Section 2.14(b).
“Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Compliance Certificate” shall mean a certificate from the principal executive officer, the principal financial officer, or another senior Responsible Officer of the Borrower substantially in the form of, and containing the certifications set forth in, the certificate attached hereto as Exhibit 5.1.
“Consolidated EBITDA” shall mean, for the Borrower and its Restricted Subsidiaries for any period, without duplication, an amount equal to the sum of (a) Consolidated Net Income for such period plus (b) to the extent deducted in determining Consolidated Net Income for such period, and without duplication,
minus (c) without duplication and to the extent included in the statement of such Consolidated Net Income for such period the sum of: (i) all non-cash income or gains (excluding any such non-cash income or gains to the extent representing an accrual of cash income or gain in any future period), (ii) all extraordinary or non-recurring income or gains to the extent resulting from activities unrelated to the primary business activities of the Borrower and its Restricted Subsidiaries, (iii), non-cash foreign exchange gains on non-functional currency intercompany loans, (iv) unrealized gains from losses attributable to mark-to-market movement in the valuation of securities and (v) any gains attributable to non-ordinary course asset sales.
“Consolidated Excess Cash Flow” shall mean, for the Borrower and its Restricted Subsidiaries for any period, without duplication, determined on a consolidated basis, an amount equal to the sum of (a) Consolidated EBITDA for such period plus (b) decreases in working capital (excluding any funds relating to any merchant receivables or payables, including those reflected in any merchant settlement or reserve account and card association, non-bank card and debit network receivables) minus (without duplication) (c)(i) Capital Expenditures made during such period (other than Capital Expenditures financed with Indebtedness (other than the Term Loans and Revolving Loans)), (ii) Consolidated Interest Expense paid in cash during such period, (iii) Permitted Tax Distributions and cash Taxes paid during such period, (iv) Consolidated Scheduled Funded Debt Payments made during such period (excluding payments of
Revolving Loans unless such payment is coupled with a corresponding reduction in the Aggregate Revolving Commitments), (v) increases in working capital (excluding any funds relating to any merchant receivables or payables, including those reflected in any merchant settlement or reserve account and card association, non-bank card and debit network receivables), (vi) cash consideration for permitted acquisitions or other investments (including in joint-ventures) paid in such period (other than (A) cash consideration in an amount equal to the net cash proceeds of any long-term Indebtedness permitted pursuant to Section 7.1 and incurred by the Borrower or any Restricted Subsidiary during such period to fund such permitted acquisition or investment and (B) cash consideration in an amount equal to the net cash proceeds of equity issuances received by the Borrower or any Restricted Subsidiary to fund such permitted acquisitions or investments within 60 days of receipt of such proceeds), (vii) cash payments made during such period with respect to Permitted Earnouts, (viii) restricted payments made in cash pursuant to Sections 7.5(b)(ii), (c), (d), (e), (f), (h), (i), (k), (l), (n), (q) and (s) during such period, in each case, to the extent such Restricted Payments were not financed with the proceeds of any long-term Indebtedness of the Borrower and its Restricted Subsidiaries; provided that, at the option of the Borrower, all such payments made after the applicable period end and prior to the applicable due date of such Consolidated Excess Cash Flow mandatory prepayment may (without duplication of such amount deducted in any period) be deducted from Consolidated Excess Cash Flow for such prior period; and (ix) amounts added back to Consolidated EBITDA pursuant to clauses (iv), (v), (viii), (ix)(B), (ix)(C), (x), (xii)-(xix) of the definition of Consolidated EBITDA.
“Consolidated Interest Expense” shall mean, for the Borrower and its Restricted Subsidiaries determined on a consolidated basis for any period, the sum of (a) total interest expense, including without limitation the interest component of any payments in respect of Capital Lease Obligations capitalized or expensed during such period (whether or not actually paid during such period) plus (b) the net amount payable (or minus the net amount receivable) with respect to Hedging Transactions during such period (whether or not actually paid or received during such period).
“Consolidated Leverage Ratio” shall mean, as of any date, the ratio of (a) Consolidated Net Debt as of such date to (b) Consolidated EBITDA, in each case for the period of four (4) Fiscal Quarters most recently ended for which financial statements are available.
“Consolidated Net Debt” shall mean, as of any date, Consolidated Total Funded Debt minus Available Cash of the Borrower and its Restricted Subsidiaries in excess of $25,000,000.
“Consolidated Net Income” shall mean, for the Borrower and its Restricted Subsidiaries for any period, the net income (or loss) of the Borrower and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, but (a) excluding therefrom (to the extent otherwise included therein) (i) any extraordinary gains or losses, (ii) any gains attributable to write-ups of assets, (iii) interest of the Borrower or any Restricted Subsidiary in the unremitted earnings of any Person that is not a Restricted Subsidiary accruing after such date, (iv) the cumulative effect of changes to accounting policies during such period, and (v) the effects of purchase and recapitalization accounting adjustments and (b) including therein (to the extent otherwise excluded therefrom) any cash dividends or other distributions received from any Person that is not a Restricted Subsidiary.
“Consolidated Scheduled Funded Debt Payments” shall mean for any period for the Borrower and its Restricted Subsidiaries on a consolidated basis, the sum of all scheduled payments of principal on Indebtedness. For purposes of this definition, “scheduled payments of principal” (a) shall be determined without giving effect to any reduction of such scheduled payments resulting from the application of any voluntary or mandatory prepayments made during the applicable period, (b) shall be deemed to include any payments with respect to the principal of Attributable Indebtedness and (c) shall not include any mandatory prepayments required by Section 2.12.
“Consolidated Total Assets” shall mean the total assets of Borrower and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of Borrower.
“Consolidated Total Funded Debt” shall mean, as of any date, the aggregate principal amount of Indebtedness of the Borrower and its Restricted Subsidiaries measured on a consolidated basis as of such date to the extent consisting of the Indebtedness for borrowed money, the capitalized amount of Capital Lease Obligation that would appear on a balance sheet of the Borrower and its Restricted Subsidiaries prepared as of such date in accordance with GAAP, purchase money Indebtedness, unreimbursed obligations in respect of drawn letters of credit (to the extent not cash collateralized), seller notes, deferred purchase price and earn-out obligations to the extent not paid after becoming payable and due, and all Guarantees with respect to any of the foregoing.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Credit Agreement Refinancing Indebtedness” shall mean (a) Permitted First Priority Refinancing Debt, (b) Permitted Junior Priority Refinancing Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or part, any Class of existing Term Loans or any Class of existing Revolving Loans (or unused Revolving Commitments), or any then-existing Credit Agreement Refinancing Indebtedness (the “Refinanced Debt”); provided that with respect to each of the foregoing clauses (a) through (d), (i) such Indebtedness shall have a maturity no earlier, and a Weighted Average Life to Maturity equal to or greater, than the Refinanced Debt, (ii) such Indebtedness shall not have a greater principal amount than the principal amount of the Refinanced Debt plus an amount equal to the aggregate unused commitments cancelled in connection therewith, plus accrued interest, fees, premiums (if any) and penalties thereon and fees and expenses associated with the refinancing; provided that nothing in this clause (ii) shall limit the ability of the Borrower to incur additional Indebtedness concurrently as part of the issuance or incurrence of such Indebtedness so long as such additional Indebtedness is otherwise permitted pursuant to the terms of this Agreement, (iii) the All-In Yield with respect to such Credit Agreement Refinancing Indebtedness shall be determined by the Borrower and the lenders providing such Credit Agreement Refinancing Indebtedness, (iv) except as otherwise provided for in preceding clauses (i) (ii), and (iii), optional prepayment or redemption terms shall be determined by the Borrower and the other terms and conditions of such Indebtedness shall be substantially identical to, or not more materially restrictive to the Loan Parties, taken as a whole, than the ones under the Refinanced Debt, as determined by Borrower in good faith (except for covenants or other provisions that are (1) reasonably satisfactory to the Administrative Agent, (2) added for the benefit of the applicable Refinanced Debt or (3) applicable only to periods after the Latest Maturity Date of the applicable Refinanced Debt), (v) such Refinanced Debt shall be repaid, repurchased, retired, defeased or satisfied and discharged, and all accrued interest, fees, premiums (if any) and penalties in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained, (vi) such Indebtedness is not at any time guaranteed by any Restricted Subsidiary other than Guarantors and (vii) to the extent secured, such Indebtedness is not secured by property or assets of the Borrower or any Restricted Subsidiary other than the Collateral except to the extent permitted by intercreditor arrangements reasonably acceptable to the Administrative Agent and the Borrower.
“Cure Amount” has the meaning set forth in Section 6.2.
“Cure Deadline” has the meaning set forth in Section 6.2.
“Cure Right” has the meaning set forth in Section 6.2.
“Daily Simple RFR” means, for any day (a “RFR Interest Day”), an interest rate per annum equal to, for any RFR Loan denominated in Pounds Sterling, SONIA for the day that is five (5) RFR Business Days prior to (i) if such RFR Interest Day is a RFR Business Day, such RFR Interest Day or (ii) if such RFR Interest Day is not a RFR Business Day, the RFR Business Day immediately preceding such RFR Interest Day (in the case of each of clauses (i) and (ii), such day being the “RFR Lookback Day”).
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Debt Fund Affiliate” shall mean, with respect to any Person, a bona fide debt fund that is an Affiliate of such person and that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, notes, bonds and similar extensions of credit or securities in the ordinary course of its business, whose managers have fiduciary duties to the investors independent of their duties to such Person or other Affiliates, and with respect to which such Person and its other Affiliates do not, directly or indirectly, possess the power to direct or cause the direction of the investment policies of such entity.
“Debtor Relief Laws” shall mean the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“Declined Proceeds” shall have the meaning set forth in Section 2.12(g).
“Default” shall mean any condition or event that, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
“Default Interest” shall have the meaning set forth in Section 2.13(c).
“Defaulting Lender” shall mean, at any time, any Lender (a) that has failed for three (3) or more Business Days to comply with its obligations under this Agreement to make a Loan and/or to make a payment to the Issuing Bank in respect of a Letter of Credit (each a “funding obligation”), unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (b) that has notified the Administrative Agent or the Borrower, or has stated publicly, that it will not comply with any such funding obligation hereunder, or has defaulted on, its obligation to fund generally under any other loan agreement, credit agreement or other financing agreement, unless such notice or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied, (c) that has, for three (3) or more Business Days, failed to confirm in writing to the Administrative Agent, in response to a written request of the Administrative Agent, that it will comply with its funding obligations hereunder, or (d) with respect to which a Lender Insolvency Event has occurred and is
continuing. The Administrative Agent will promptly send to all parties hereto a copy of any notice to the Borrower provided for in this definition.
“Designated Borrower” has the meaning specified in the introductory paragraph hereto.
“Designated Borrower Request and Assumption Agreement” means the notice substantially in the form of Exhibit 2.29(a) attached hereto.
“Designated Borrower Notice” means the notice substantially in the form of Exhibit 2.29(b) attached hereto.
“Deutsche Bank Settlement Facility Agreement” shall mean that certain Uncommitted Revolving Line of Credit Agreement, dated as of December 1, 2017, by and among Deutsche Bank AG New York Branch, EVO Merchant Services, LLC and the Borrower, as amended, restated, supplemented or otherwise modified from time to time.
“Discount Prepayment Accepting Lender” has the meaning set forth in (k)(ii)(B)(2).
“Discount Range” has the meaning set forth in (k)(ii)(C)(1).
“Discount Range Prepayment Amount” has the meaning set forth in (k)(ii)(C)(1).
“Discount Range Prepayment Notice” shall mean a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to (k)(ii)(C).
“Discount Range Prepayment Offer” shall mean the irrevocable written offer by a Lender submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.
“Discount Range Prepayment Response Date” has the meaning set forth in (k)(ii)(C)(1).
“Discount Range Proration” has the meaning set forth in (k)(ii)(C)(3).
“Discounted Prepayment Determination Date” has the meaning set forth in (k)(ii)(D)(3).
“Discounted Prepayment Effective Date” shall mean in the case of a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offer or Borrower Solicitation of Discounted Prepayment Offer, five Business Days following the Specified Discount Prepayment Response Date, the Discount Range Prepayment Response Date or the Solicited Discounted Prepayment Response Date, as applicable, in accordance with Section 2.11(b)(ii)(A), (k)(ii)(C)(1) or (k)(ii)(D)(1), respectively, unless a shorter period is agreed to between the Borrower and the Auction Agent.
“Discounted Term Loan Prepayment” has the meaning set forth in (k)(ii)(A).
“Disposition” or “Dispose” shall mean the sale, transfer, license, lease or other disposition of any property by the Borrower or any Restricted Subsidiary, including any Sale and Leaseback Transaction and any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding (a) the disposition of inventory in the ordinary course of business; (b) the disposition of property no longer used or useful in the conduct of business of the Borrower and its Restricted Subsidiaries in the ordinary course of business (including allowing registrations or applications for registration of any immaterial IP Rights to lapse or go abandoned
in the ordinary course of business); (c) the disposition of property to the Borrower or any Restricted Subsidiary; (d) the disposition of accounts receivable in connection with the collection or compromise thereof; (e) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Borrower and its Restricted Subsidiaries, taken as a whole; (f) the disposition of cash and Cash Equivalents; and (g) any Recovery Event.
“Disqualified Capital Stock” shall mean any Capital Stock that, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than (i) solely for Qualified Capital Stock, cash and Cash Equivalents in lieu of fractional shares or (ii) solely at the discretion of the issuer), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control, asset sale or similar event so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale or similar event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and the termination of all outstanding Letters of Credit (unless the LC Exposure related thereto has been Cash Collateralized, back-stopped by a letter of credit reasonably satisfactory to the applicable Issuing Bank or deemed reissued under another agreement reasonably acceptable to the applicable Issuing Bank)), (b) is redeemable at the option of the holder thereof (other than (i) solely for Qualified Capital Stock, cash and Cash Equivalents in lieu of fractional shares or (ii) solely at the discretion of the issuer), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control, asset sale or similar event so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale or similar event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and the termination of all outstanding Letters of Credit (unless the LC Exposure related thereto has been Cash Collateralized, back-stopped by a letter of credit reasonably satisfactory to the applicable Issuing Bank or deemed reissued under another agreement reasonably acceptable to the applicable Issuing Bank)), in whole or in part, (c) provides for the scheduled payments of dividends in cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is 91 days after the Latest Maturity Date for any existing Loan at the time of issuance of such Capital Stock; provided that if such Capital Stock is issued pursuant to a plan for the benefit of employees of the Borrower or the Restricted Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because such Capital Stock may be required to be repurchased by the Borrower or its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.
“Disqualified Institutions” shall mean any and all of the following: (i) those Persons identified by the Borrower in writing to the Administrative Agent prior to the date hereof, (ii) any person identified by name by the Borrower in writing to the Administrative Agent from time to time that is or becomes a competitor of the Borrower or any of its Subsidiaries, (iii) any Affiliates (other than any Debt Fund Affiliate) of any Person described in clause (i) or (ii) above that are clearly identifiable as Affiliates solely on the basis of their name and (iv) any other Affiliate (other than any Debt Fund Affiliate) of any Person described in clause (i) or (ii) above that is identified by name by the Borrower in writing to the Administrative Agent from time to time; provided, that no written notice delivered pursuant to clauses (ii) or (iv) above shall (x) apply retroactively to disqualify any Person that has previously acquired an assignment or participation interest in any Loans or entered into a trade for either of the foregoing or (y) become effective until three (3) Business Days after such written notice is delivered to the Administrative Agent.
“Distributed Amounts” has the meaning given in the definition of Permitted Tax Distributions.
“Documentation Agents” means BOFA Securities, Inc., Capital One, National Association, Citibank, N.A., JPMorgan Chase Bank, N.A., MUFG Bank, Ltd. Royal Bank of Canada and U.S. Bank National Association in their capacities as co-documentation agents.
“Dollar(s)” and the sign “$” shall mean lawful money of the United States of America.
“Dollar Commitment” shall mean, with respect to each Dollar Lender, the commitment of such Dollar Lender to make Revolving Loans denominated in Dollars hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Dollar Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.8 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.4. The initial amount of each Lender’s Dollar Commitment is set forth on Schedule I, or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Dollar Commitment, as applicable.
“Dollar Equivalent” shall mean, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in the Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the Issuing Bank, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with the Alternative Currency.
“Dollar Lender” shall mean the Persons listed on Schedule I as having Dollar Commitments and any other Person that shall have become a party hereto pursuant to an Assignment and Acceptance that provides for it to assume a Dollar Commitment or to acquire Revolving Dollar Credit Exposure, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance.
“Dollar Loan” shall mean a Loan made or incurred under the Dollar Commitments.
“Domestic Foreign Holdco” shall have the meaning set forth in the definition of “Excluded Subsidiary”.
“Domestic Subsidiary” shall mean any Subsidiary that is not a Foreign Subsidiary.
“Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
“Early Opt-in Election” means occurrence of:
(1) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2) the joint election by the Administrative Agent and the Borrower to trigger a fallback from the LIBOR and the provision by the Administrative Agent of written notice of such election to the Lenders.
“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“EMU” shall mean the economic and monetary union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.
“EMU Legislation” shall mean the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environmental Laws” shall mean all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety matters.
“Environmental Liability” shall mean any liability, contingent or otherwise (including any liability for damages, costs of environmental investigation and remediation, costs of administrative oversight, fines, natural resource damages, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (i) any actual or alleged violation of any Environmental Law, (ii) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (iii) any actual or alleged exposure to any Hazardous Materials, (iv) the Release or threatened Release of any Hazardous Materials or (v) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, the rules and regulations promulgated thereunder, and any successor statute.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated), which, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” shall mean (i) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (ii) the failure of any Plan to meet the minimum funding standard applicable to the Plan for a plan year under Section 412 of the Code or Section 302 of ERISA, whether or not waived; (iii) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (iv) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (v)
the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator appointed by the PBGC of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (vi) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“Erroneous Payment” has the meaning assigned to it in Section 9.15(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 9.15(d)(i).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 9.15(d)(i).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 9.15(d)(i).
“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 9.15(e).
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“EURIBOR” means, with respect to any Borrowing denominated in Euros and for any Interest Period, the EURIBOR Screen Rate, two TARGET Days prior to the commencement of such Interest Period.
“EURIBOR Screen Rate” means the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters as published at approximately 11:00 a.m. Brussels time two TARGET Days prior to the commencement of such Interest Period. If such page or service ceases to be available, the Administrative Agent may specify another page or service displaying the relevant rate after consultation with the Borrower.
“Euro” and “EUR” shall mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
“Eurodollar” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to (A) the Adjusted LIBO Rate, (B) Adjusted EURIBOR. or (C) the Peso Rate.
“Eurodollar Reserve Percentage” shall mean the aggregate of the maximum reserve percentages (including, without limitation, any emergency, supplemental, special or other marginal reserves) expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect on any day to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate, Adjusted EURIBOR or Peso Rate pursuant to regulations issued by the Board of Governors of the Federal Reserve System (or any Governmental Authority succeeding to any of its principal functions) with respect to eurocurrency funding (currently referred to as “eurocurrency liabilities” under Regulation D) or any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Event of Default” has the meaning provided in Article VIII.
“EVO” has the meaning set forth introductory paragraph hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Excluded Accounts” has the meanings ascribed to such term in the Security Agreement.
“Excluded Information” has the meaning set forth in (k)(ii)(F).
“Excluded Merchant Reserve and Settlement Accounts” shall mean (a) those certain merchant reserve and settlement accounts (and related investment accounts) serving as collateral under the Permitted BIN Arrangement, any other BIN sponsor arrangement and the other agreements related thereto (including the Deutsche Bank Settlement Facility Agreement and Wells Fargo Settlement Facility Agreement, and any accounts into which any amounts from such merchant reserve and settlement accounts are swept or otherwise transferred for investment purposes, and from which such amounts have been agreed to be returned to such merchant reserve and settlement accounts the next day) and (b) the interest, products, proceeds, insurance payments or claims, and guarantees thereon.
“Excluded Property” shall mean, with respect to any Loan Party, (a) any owned real property and all leased property or leasehold interests (with no requirement to obtain landlord waivers, estoppels or collateral access letters or agreements), (b) any IP Rights for which a perfected Lien thereon is not effected either by filing of a Uniform Commercial Code financing statement or by appropriate evidence of such Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, (c) any personal property (other than personal property described in clause (b) above) for which the attachment or perfection of a Lien thereon is not governed by the Uniform Commercial Code, (d) the Capital Stock of any Foreign Subsidiary to the extent not required to be pledged to secure the Obligations pursuant to Section 5.11(c), (e) motor vehicles, airplanes and other assets subject to certificates of title, (f) the Excluded Merchant Reserve and Settlement Accounts and the other Excluded Accounts; and the Existing BIN Sponsorship Agreement, the Replacement BIN Sponsorship Agreement and such other agreements of similar nature and all the other agreements related thereto, (g) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto and acceptance thereof by the United States Patent and Trademark Office, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of or void such intent-to-use trademark application or any registration issuing therefrom under applicable federal law, (h) any asset with respect to which the Administrative Agent and the Borrower in their reasonable determination that the costs or other consequences of providing a security interest is excessive in view of the practical benefits to be obtained by the Lenders, (i) any particular asset, if the pledge thereof or the security interest therein is prohibited or restricted by applicable Law other than to the extent such prohibition or restriction is rendered ineffective under the Uniform Commercial Code or other applicable Law notwithstanding such prohibition (with no requirement to obtain the consent of any governmental authority, regulatory authority or third party, including, without limitation, no requirement to comply with the Federal Assignment of Claims Act or any similar statute), (j) any rights of a Loan Party arising under or evidenced by any contract, lease, instrument, license or agreement or any property subject to such agreement or arrangement, to the extent the Liens therein are prohibited or restricted by such contract, lease, instrument, license or other agreement or would violate or invalidate such contract, lease, instrument, license or agreement or would create a right of termination in favor of any other party thereto (other than
Borrower and its Restricted Subsidiaries) or otherwise require consent thereunder (other than from Borrower and its Restricted Subsidiaries), after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable Law, (k) any governmental licenses or state or local franchises, charters and authorizations, to the extent Liens in such licenses, franchises, charters or authorizations are prohibited or restricted thereby (except to the extent such prohibition or restriction is deemed ineffective under the Uniform Commercial Code or other applicable Law or principle of equity), (l) the Capital Stock of any Person that is not a Subsidiary, (m) any assets to the extent a security interest in such assets could reasonably be expected to result in adverse tax consequences or adverse regulatory consequences, in each case, as reasonably determined by Borrower, (n) margin stock; stock and assets of Unrestricted Subsidiaries, captive insurance Subsidiaries, not-for-profit subsidiaries, special purpose entities (including special purpose entities for receivables financings, but in the case of Capital Stock of such special purpose entities, only to the extent a pledge thereof is prohibited by applicable law or contractual obligation) and Immaterial Subsidiaries; (o) interests in joint ventures and non-wholly owned Subsidiaries; (p) any property subject to a purchase money or capital lease financing arrangement or similar arrangement; (q) letter of credit rights (other than to the extent such rights can be perfected by filing a UCC financing statement) and commercial tort claims of less than $1,000,000; (r) any assets acquired in connection with a permitted acquisition or other permitted Investment subject to Liens permitted by hereunder and which are subject to contractual arrangements prohibiting a Lien securing the Obligations; (s) receivables and related assets (or interest therein) sold to any receivables Subsidiary or otherwise pledged, factored, transferred or sold in connection with a permitted receivables or securitization financings (including supply chain financing arrangements or “reverse factoring” and similar programs which any Loan Party enters into at the request of a customer) and (t) any assets located or titled outside the United States or assets that require action under the laws of any jurisdiction other than the United States or any State thereof to create or perfect a security interest in such assets, including any intellectual property registered in any jurisdiction other than the United States (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any jurisdiction other than the United States or any State thereof).
“Excluded Repurchase Obligation” shall mean an obligation of the Borrower or a Restricted Subsidiary to repurchase, redeem or otherwise acquire the Capital Stock of a Subsidiary if such obligation is structured so that no payment is due thereunder if an Event of Default has occurred and is continuing hereunder or if an Event of Default, on a pro forma basis, would be created by the making of such payment. For the avoidance of doubt, notwithstanding anything to the contrary, for purposes of the Loan Documents, Excluded Repurchase Obligations shall be disregarded and not be included in the calculation of the Consolidated Leverage Ratio or any other leverage ratio calculation.
“Excluded Subsidiary” shall mean any (a) Subsidiary to the extent the provision of a guaranty by such Subsidiary could reasonably be expected to result in adverse tax consequences that are not de minimis as reasonably determined by Borrower, (b) Unrestricted Subsidiary, (c) captive insurance company, (d) not-for-profit Subsidiary, (e) special purpose entity (including those formed for the purpose of executing receivables financings) so long as such entity is not created in contemplation of circumventing the guaranty requirements hereof, (f) Immaterial Subsidiary, (g) Subsidiary to the extent a guaranty from such Subsidiary is prohibited or restricted by contracts existing on the Restatement Effective Date, so long as such contract is not entered into for the purpose of evading the delivery of such guaranty, or applicable law (including any requirement to obtain governmental or regulatory authority or third party consent, approval, license or authorization) for so long as such prohibition or restriction exists, (h) any direct or indirect Domestic Subsidiary of a direct or indirect Foreign Subsidiary and any other direct or indirect foreign subsidiary, (i) any direct or indirect Foreign Subsidiary, (j) any direct or indirect Domestic Subsidiary (each, a “Domestic Foreign Holdco”) substantially all the assets of which are Capital Stock (or Capital Stock and/or debt) of one or more Foreign Subsidiaries or other Domestic Foreign Holdcos, (k) any Restricted Subsidiary acquired pursuant to a permitted investment that is contractually prohibited on the date of acquisition, so
long as such contractual restrictions are not entered into for the purpose of evading the delivery of such guaranty, and only for so long as such contractual prohibition exists, (l) solely in the case of any obligation under any secured hedging agreement expressly designated by Borrower as “Obligations” that constitutes a “swap” within the meaning of section 1(a)(47) of the Commodity Exchange Act, any subsidiary that is not an “Eligible Contract Participant” as defined under the Commodity Exchange Act (after giving effect to any “keepwell provisions”), (m) any other Subsidiary to the extent the Administrative Agent and Borrower determine the cost and/or burden of obtaining the guaranty outweigh the benefit to the Lenders and (n) any Subsidiary that is not wholly-owned (other than any majority-owned Subsidiary existing on the Restatement Effective Date); provided, that no Subsidiary shall be deemed an Excluded Subsidiary pursuant to the foregoing clause (n) if such Subsidiary is not wholly-owned as a result of a transaction undertaken for the primary purpose deeming such Subsidiary as an Excluded Subsidiary.
“Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor pursuant to the Guaranty of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.8 and any other “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guarantee of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” shall mean with respect to the Administrative Agent, any Lender, the Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case imposed as a result of (i) such recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.25) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.20, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Lender’s failure to comply with Section 2.20(f) and (d) any withholding Taxes imposed under FATCA.
“Existing BIN Sponsorship Agreement” shall have the meaning set forth in the definition of “Permitted BIN Arrangement”.
“Existing Credit Agreement” has the meaning set forth in the recitals hereto.
“Existing Revolver Tranche” has the meaning set forth in (bb)(ii).
“Extended Revolving Commitments” has the meaning set forth in (bb)(ii).
“Existing Term Loan Tranche” has the meaning set forth in (bb)(i).
“Extended Revolving Loans” shall mean one or more Classes of Revolving Loans that result from an Extension Amendment.
“Extended Term Loans” has the meaning set forth in (bb)(i).
“Extending Revolving Lender” has the meaning set forth in (bb)(iii).
“Extending Term Lender” has the meaning set forth in (bb)(iii).
“Extension” shall mean the establishment of an Extension Series by amending a Loan pursuant to the terms of Section 2.28 and the applicable Extension Amendment.
“Extension Amendment” has the meaning set forth in (bb)(iv).
“Extension Election” has the meaning set forth in (bb)(iii).
“Extension Request” shall mean any Term Loan Extension Request or a Revolver Extension Request, as the case may be.
“Extension Series” shall mean any Term Loan Extension Series or a Revolver Extension Series, as the case may be.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent.
“Fiscal Quarter” shall mean any fiscal quarter of the Borrower.
“Fiscal Year” shall mean any fiscal year of the Borrower.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted LIBO Rate, Adjusted EURIBOR, the Peso Rate, the Adjusted Daily Simple RFR or the Central Bank Rate, as applicable. For the avoidance of doubt the initial Floor for each of the Adjusted LIBO Rate, Adjusted EURIBOR, the Peso Rate, the Adjusted Daily Simple RFR and the Central Bank Rate shall be 0.00%.
“Flow-Through Entity” has the meaning given in the definition of Permitted Tax Distributions.
“Foreign Casualty Event” has the meaning set forth in Section 2.12(i).
“Foreign Disposition” has the meaning set forth in Section 2.12(i).
“Foreign Lender” shall mean any Lender that is not a U.S. Person.
“Foreign Subsidiary” shall mean any Subsidiary that is organized under the Laws of a jurisdiction other than the United States, or a state or political subdivision thereof including the District of Columbia.
“Foreign Subsidiary Excess Cash Flow” shall have the meaning set forth in Section 2.12(h).
“GAAP” shall mean generally accepted accounting principles in the United States applied on a consistent basis and subject to the terms of Section 1.3.
“Governmental Authority” shall mean the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantee” of or by any Person (the “guarantor”) shall mean any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly and including any obligation, direct or indirect, of the guarantor (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or (iv) as an account party in respect of any letter of credit or letter of guaranty issued in support of such Indebtedness; provided, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantors” shall mean, collectively, (a) each Subsidiary identified as a “Guarantor” on the signature pages to the Second Restatement Agreement, (b) each Person that joins as a Guarantor pursuant to Section 5.11 or otherwise, (c) with respect to (i) any Hedging Obligations between any Loan Party (other than the Borrower) and any Lender-Related Hedge Provider that are permitted to be incurred pursuant to Section 7.10 and any Bank Products Obligations owing by any Loan Party (other than the Borrower), the Borrower and (ii) the payment and performance by each Specified Loan Party of its obligations under its Guaranty with respect to all Swap Obligations, the Borrower, and (d) the successors and permitted assigns of the foregoing; provided, however, that no Excluded Subsidiary shall be a Guarantor.
“Guaranty” shall mean the Guaranty made by the Guarantors in favor of the Administrative Agent, for the benefit of the holders of the Obligations, pursuant to Article X.
“Hazardous Materials” shall mean all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Hedging Obligations” of any Person shall mean any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired under (a) any and all Hedging Transactions, (b) any and all cancellations, buy backs, reversals, terminations or assignments of any Hedging Transactions and (c) any and all renewals, extensions and modifications of any Hedging Transactions and any and all substitutions for any Hedging Transactions.
“Hedging Termination Value” shall mean, in respect of any one or more Hedging Transactions, after taking into account the effect of any legally enforceable netting agreement relating to such Hedging Transactions, (a) for any date on or after the date such Hedging Transactions have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Transactions, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Transactions (which may include a Lender or any Affiliate of a Lender).
“Hedging Transaction” of any Person shall mean (a) any transaction (including an agreement with respect to any such transaction) now existing or hereafter entered into by such Person that is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, spot transaction, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether or not any such transaction is governed by or subject to any master agreement and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Identified Participating Lenders” has the meaning set forth in (k)(ii)(C)(3).
“Identified Qualifying Lenders” has the meaning set forth in (k)(ii)(D)(3).
“Immaterial Subsidiary” shall mean, at any date of determination, each Subsidiary of the Borrower that is a Restricted Subsidiary and whose contribution to the Consolidated Total Assets of the Borrower and its Restricted Subsidiaries for the most recent Test Period is less than 5.0% of such Consolidated Total Assets, determined in accordance with GAAP; provided that if, at any time and from time to time after the Restatement Effective Date, Restricted Subsidiaries meeting the threshold set forth above but whose aggregate contributions to such Consolidated Total Assets exceed 7.5% of such Consolidated Total Assets, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such longer period as the Administrative Agent may agree in its reasonable discretion), (i) designate in writing to the Administrative Agent one or more of such Restricted Subsidiaries as “Material Subsidiaries” to the extent required such that the foregoing condition ceases to be true and (ii) cause such designated Subsidiary to comply with the requirements of the Loan Documents to become a Loan Party to the extent such designated Subsidiary does not otherwise constitute an Excluded Subsidiary.
“Increase Period” has the meaning set forth in Section 6.1.
“Incremental Amendment” has the meaning set forth in Section 2.23(f).
“Incremental Arranger” has the meaning set forth in Section 2.23(e)(ii)(B).
“Incremental Commitments” has the meaning set forth in Section 2.23(a).
“Incremental Equivalent Debt” has the meaning set forth in Section 2.23(h).
“Incremental Facility Closing Date” has the meaning set forth in Section 2.23(d).
“Incremental Lenders” has the meaning set forth in Section 2.23(c).
“Incremental Loan” has the meaning set forth in Section 2.23(b).
“Incremental Request” has the meaning set forth in Section 2.23(a).
“Incremental Revolving Commitments” has the meaning set forth in Section 2.23(a).
“Incremental Revolving Facility” has the meaning set forth in Section 2.23(a).
“Incremental Revolving Facility Commitments” has the meaning set forth in Section 2.23(a).
“Incremental Revolving Lender” has the meaning set forth in Section 2.23(c).
“Incremental Revolving Loan” has the meaning set forth in Section 2.23(b).
“Incremental Term Commitments” has the meaning set forth in Section 2.23(a).
“Incremental Term Lender” has the meaning set forth in Section 2.23(c).
“Incremental Term Loan” has the meaning set forth in Section 2.23(b).
“Indebtedness” of any Person shall mean, without duplication (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of the deferred purchase price of property or services, (iv) all obligations of such Person under any conditional sale or other title retention agreement(s) relating to property acquired by such Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations, contingent or otherwise, of such Person in respect of letters of credit, acceptances or similar extensions of credit, (vii) all Guarantees of such Person of the type of Indebtedness described in clauses (i) through (vi) above, (viii) all Indebtedness of a third party secured by any Lien on property owned by such Person, whether or not such Indebtedness has been assumed by such Person, with the amount of such Indebtedness being equal to the lesser of (a) the aggregate outstanding principal amount of such Indebtedness and (b) the fair market value of the property encumbered thereby as determined by such Person in good faith, (ix) all obligations of such Person in respect of Disqualified Capital Stock if and to the extent that the foregoing would constitute indebtedness in accordance with GAAP, (x) Off-Balance Sheet Liabilities, and (xi) all Hedging Obligations. For all purposes of hereof and the other Loan Documents, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner, except to the extent such Person’s liability for such Indebtedness is otherwise limited, and (B) exclude (i) trade accounts and accrued expenses payable in the ordinary course of business, (ii) Settlement Obligations incurred in the ordinary course of business, including the Wells Fargo Settlement Facility Agreement and the Deutsche Bank Settlement Facility Agreement and any other settlement facility
entered into by Borrower or a Restricted Subsidiary and including for the avoidance of doubt, any guaranty provided with respect to such Settlement Obligation, (iii) any earn-out obligation until such obligation is not paid after becoming due and payable, (iv) accruals for payroll and other liabilities accrued in the ordinary course of business and (v) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller. The amount of any net obligation under any Hedging Obligations on any date shall be deemed to be the Hedging Termination Value thereof as of such date.
“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party, and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Interest Period” shall mean with respect to any Eurodollar Borrowing, a period of one, three or six months (or in the case of a Eurodollar Loans denominated in Mexican Pesos, twenty-eight (28), ninety-one (91) or one hundred eighty two (182) days thereafter) (or, upon the consent of the applicable Lenders holding the same Type of Loans, such other period that is twelve months or less); provided, that:
the initial Interest Period for such Borrowing shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of another Type), and each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires;
if any Interest Period would otherwise end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless such Business Day falls in another calendar month, in which case such Interest Period would end on the next preceding Business Day;
any Interest Period which begins on the last Business Day of a calendar month or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period shall end on the last Business Day of such calendar month;
each principal installment of the Term Loans shall have an Interest Period ending on each installment payment date and the remaining principal balance (if any) of the Term Loans shall have an Interest Period determined as set forth above; and
no Interest Period may extend beyond the Revolving Commitment Termination Date, unless on the Revolving Commitment Termination Date the aggregate outstanding principal amount of all Term Loans is equal to or greater than the aggregate principal amount of Eurodollar Loans with Interest Periods expiring after such date, and no Interest Period may extend beyond the Latest Maturity Date.
“Investco” shall mean EVO Investco, LLC, a Delaware limited liability company, and its successors and assigns.
“Investments” has the meaning assigned to such term in Section 7.4.
“Investment Basket” has the meaning assigned to such term in Section 7.4(e).
“IP Rights” shall mean all of the trademarks, service marks, trade names, copyrights, patents and other intellectual property rights that the Borrower or any of its Subsidiaries owns, or possesses the legal right to use under a written license.
“IRS” means the United States Internal Revenue Service.
“Issuing Bank” shall mean each of (i) Truist Bank, (ii) solely with respect to the Existing Letters of Credit, Citibank, N.A., in each case in their respective individual capacities as the issuer of a Letter of Credit hereunder or (iii) any successor issuer of Letters of Credit. At any time there is more than one Issuing Bank, references herein and in the other Loan Documents to the Issuing Bank shall be deemed to refer to the Issuing Bank in respect of the applicable Letter of Credit or to all Issuing Banks, as the context requires.
“Junior Financing” shall have the meaning set forth in Section 7.12(b).
“Latest Maturity Date” shall mean, at any date of determination, the latest maturity date applicable to any Loan or Commitment hereunder at such time, including the latest maturity date of any Extended Revolving Commitments, Incremental Revolving Commitments, Refinancing Revolving Commitments, Term Loans, Extended Term Loans, Incremental Term Loans, Refinancing Term Loans, Replacement Term Loans and Refinancing Term Commitments, in each case as extended in accordance with this Agreement from time to time.
“Laws” shall mean, 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.
“LCA Election” has the meaning set forth in Section 1.7.
“LCA Test Date” has the meaning set forth in Section 1.7.
“LC Commitment” shall mean that portion of the Multicurrency Commitments that may be used by the Borrower for the issuance of Letters of Credit in an aggregate face amount not to exceed TWENTY MILLION DOLLARS ($20,000,000).
“LC Disbursement” shall mean a payment made by the Issuing Bank pursuant to a Letter of Credit.
“LC Documents” shall mean all applications, agreements and instruments relating to the Letters of Credit but excluding the Letters of Credit.
“LC Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time, plus (b) the aggregate amount of all LC Disbursements that have not been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender shall be its Pro Rata Share of the total LC Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit governed by the International Standby Practices 1998 as provided in Section 2.22(j) has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the International Standby Practices 1998, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Lender Insolvency Event” shall mean that (a) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, (b) a Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, custodian or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its
consent to or acquiescence in any such proceeding or appointment, (c) a Lender or its Parent Company has been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its assets to be, insolvent or (d) a Lender is the subject of a Bail-in Action; provided that, for the avoidance of doubt, a Lender Insolvency Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interest in or control of a Lender or a Parent Company thereof by a Governmental Authority or an instrumentality thereof.
“Lender-Related Hedge Provider” shall mean, (a) any Lender on the Restatement Effective Date or Affiliate of such Lender that is party to a Hedging Transaction with any Loan Party in existence on the Restatement Effective Date, (b) any Person that, at the time it enters into a Hedging Transaction with any Loan Party, is a Lender or an Affiliate of a Lender and (c) except when the Lender-Related Hedge Provider is Truist Bank (or prior to the Restatement Effective Date, Citibank, N.A.) and its Affiliates, has provided prior written notice to the Administrative Agent which has been acknowledged by the Borrower of (i) the existence of such Hedging Transaction, and (ii) the methodology to be used by such parties in determining the obligations under such Hedging Transaction from time to time. In no event shall any Lender-Related Hedge Provider acting in such capacity be deemed a Lender for purposes hereof to the extent of and as to Hedging Obligations except that each reference to the term “Lender” in Article IX and Section 11.4 shall be deemed to include such Lender-Related Hedge Provider. In no event shall the approval of any such Person in its capacity as Lender-Related Hedge Provider be required in connection with the release or termination of any security interest or other Lien purported to be created under any Loan Document.
“Lenders” shall mean, collectively, the Multicurrency Lenders and the Dollar Lenders and each Additional Lender that joins this Agreement pursuant to Section 2.23, and their successors and assigns.
“Letter of Credit” shall mean any stand-by letter of credit issued pursuant to Section 2.22 by the Issuing Bank for the account of the Borrower or any Restricted Subsidiary pursuant to the LC Commitment and the Existing Letters of Credit. Letters of Credit may be denominated in Dollars or in the Alternative Currency.
“Letter of Credit Fee” shall have the meaning set forth in Section 2.14(c).
“LIBOR” shall mean, for any Interest Period with respect to a Eurodollar Loan denominated in Dollars, (i) the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London, England time), two (2) Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period (the “LIBOR Reference Rate”) or (ii) if greater, 0.00% per annum. If such rate is not available at such time for any reason, then “LIBOR” for such Interest Period shall be (x) a comparable successor or alternative interbank rate for deposits in Dollars that is, at such time, broadly accepted by the syndicated loan market in the United States in lieu of “LIBOR” and is reasonably determined by the Borrower and the Administrative Agent or (y) solely if no such broadly accepted comparable successor interbank rate exists at such time, a successor or alternative index rate as the Administrative Agent and the Borrower may determine in accordance with Section 2.16.
“LIBOR Reference Rate” has the meaning ascribed to such term in the definition of “LIBOR”.
“Lien” shall mean any mortgage, pledge, security interest, lien (statutory or otherwise), charge, encumbrance, hypothecation, collateral assignment, deposit arrangement, or other arrangement having the practical effect of any of the foregoing or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having the same economic effect as any of the foregoing).
“Limited Condition Acquisition” shall mean any permitted acquisition or permitted Investment in any assets, business or Person, in each case the consummation of which is not conditioned on the availability of, or on obtaining, third party financing.
“Loan Documents” shall mean, collectively, this Agreement, the Intercreditor Agreement, the Notes, the Collateral Documents, the LC Documents, the Agency Fee Letter, the Notice of Revolving Borrowing, all Notices of Conversion/Continuation, all Compliance Certificates, all stock powers and similar instruments of transfer delivered in connection with any Collateral Document, each Refinancing Amendment, Incremental Amendment or Extension Amendment, and any other instrument, agreement or document executed by a Loan Party in connection with any of the foregoing and designated in writing by the Borrower and the Administrative Agent as a Loan Document.
“Loan Parties” shall mean, collectively, the Guarantors and the Borrower.
“Loans” shall mean all Revolving Loans and Term Loans (including any Term Loans, any Incremental Term Loans and any extensions of credit under any Revolving Commitment Increase or any Incremental Revolving Commitment, any Extended Term Loans and any extensions of credit under any Extended Revolving Commitment, any Refinancing Term Loans and any extensions of credit under any Refinancing Revolving Commitment and any Replacement Term Loans) in the aggregate or any of them, as the context shall require.
“LTM Consolidated EBITDA” shall mean the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries with respect to the 12-month period ending on the last day of the most recently ended period for which financial statements have been delivered pursuant to Section 5.1.
“Management Stockholders” shall mean the current or former members of management of the Borrower or any of its direct or indirect parent entities or Subsidiaries who are direct or indirect investors in the Borrower or any direct or indirect parent thereof.
“Material Acquisition” shall mean any permitted acquisition the Aggregate Consideration for which is equal to or greater than $50,000,000 per acquisition or series of acquisitions in any fiscal quarter.
“Material Adverse Effect” shall mean, with respect to any change or condition (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singularly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences whether or not related, resulting in a material adverse change in, or a material adverse effect on, (a) the business, financial condition or results of operations of the Borrower and its Subsidiaries taken as a whole, (b) the ability of the Loan Parties (taken as a whole) to perform any of their respective material payment obligations under the Loan Documents or (c) the material rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders under the Loan Documents, taken as a whole including the legality, validity, binding effect or enforceability of the Loan Documents.
“Material Indebtedness” shall mean any Indebtedness of the type included in Consolidated Total Funded Debt (other than (a) the Obligations outstanding under the Loan Documents and (b) any Indebtedness owing by the Borrower or any Restricted Subsidiary to a Restricted Subsidiary or the Borrower) of the Borrower or any of its Subsidiaries, individually or in an aggregate outstanding principal amount exceeding the greater of (x) $34,000,000 and (y) 20.0% LTM Consolidated EBITDA.
“Material Intellectual Property” shall mean any intellectual property owned (or otherwise holding exclusive license to) by the Borrower and its Restricted Subsidiaries that is material to the business of the
Borrower and its Restricted Subsidiaries, taken as a whole (whether owned as of the Restatement Effective Date or thereafter acquired).
“Material Subsidiary” means any Subsidiary that is not an “Immaterial Subsidiary”.
“Maturity Date” shall mean, the earlier of (x) the date on which the principal amount of any Loan has been declared or automatically has become due and payable pursuant to Section 8.1 (whether by acceleration or otherwise) and (y) (i) with respect to the Term Loans, November 1, 2026; (ii) with respect to the Revolving Commitments, the Revolving Commitment Termination Date; (iii) with respect to any tranche of Extended Term Loans or Extended Revolving Commitments, the final maturity date as specified in the applicable Extension Amendment, (iv) with respect to any Incremental Term Loans or Incremental Revolving Commitments, the final maturity date as specified in the applicable Incremental Amendment, (v) with respect to any Refinancing Term Loans or Refinancing Revolving Commitments, the final maturity date as specified in the applicable Refinancing Amendment, and (vi) with respect to any Replacement Term Loans, the final maturity date as specified in the applicable agreement; provided that, in each case, if such day is not a Business Day, the Maturity Date shall be the Business Day immediately succeeding such day.
“Mexican Peso” means the lawful currency of Mexico.
“Moody’s” shall mean Moody’s Investors Service, Inc.
“Multicurrency Commitment” shall mean, with respect to each Multicurrency Lender, the commitment of such Multicurrency Lender to make Multicurrency Loans (including, for the avoidance of doubt, Loans made in Dollars), and to acquire participations in Letters of Credit expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Multicurrency Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.8 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.4. The initial amount of each Multicurrency Lender’s Multicurrency Commitment is set forth on Schedule I, or in the case of a Person becoming a Multicurrency Lender after the Restatement Effective Date, the amount of the assigned “Multicurrency Commitment” as provided in the Assignment and Acceptance executed by such Person as an assignee, or the joinder executed by such Person. The aggregate amount of the Multicurrency Lenders’ Multicurrency Commitments as of the Restatement Effective Date is $200,000,000.
“Multicurrency Lender” shall mean the Persons listed on Schedule I as having Multicurrency Commitments and any other Person that shall have become a party hereto pursuant to an Assignment and Acceptance that provides for it to assume a Multicurrency Commitment or to acquire Revolving Multicurrency Credit Exposure, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance.
“Multicurrency Loan” shall mean a Loan made or incurred under the Multicurrency Commitments.
“Multiemployer Plan” shall mean any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which the Borrower makes or is obligated to make contributions or with respect to which Borrower has any liability (including on account of an ERISA Affiliate).
“Net Cash Proceeds” shall mean
the aggregate cash or Cash Equivalents proceeds received by the Borrower or any Restricted Subsidiary in respect of any Disposition or Recovery Event, net of (a) direct costs, fees and expenses incurred in connection therewith (including legal, accounting and investment banking fees, sales
commissions, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees and expenses incurred in connection therewith), (b) taxes and Permitted Tax Distributions paid or reasonably estimated to be payable as a result thereof or paid or reasonably estimated to be payable as a result of the repatriation thereof, (c) the amount necessary to retire any Indebtedness secured by a Lien permitted by Section 7.2 (other than a Lien subordinated to the Liens securing the Obligations) on the related property, together with any applicable premium, penalty, interest and breakage costs; (d) in the case of any Disposition or Recovery Event by a non-wholly owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof attributable to minority interests and not available for distribution to or for the account of the Borrower or a wholly owned Restricted Subsidiary as a result thereof; (e) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) related to any of the applicable assets and (y) retained by the Borrower or any of the Restricted Subsidiaries including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations and (f) any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition (provided that to the extent that any amounts are released from such escrow to Borrower or a Restricted Subsidiary, such amounts net of any related expenses shall constitute Net Cash Proceeds); and
the aggregate cash proceeds from the incurrence, issuance or sale by the Borrower or any of the Restricted Subsidiaries of any Indebtedness, net of all taxes paid or reasonable estimated to be payable as a result thereof and fees (including investment banking fees and discounts), commissions, costs and other expenses, including mandatory prepayments associated therewith, in each case incurred in connection with such issuance or sale.
For purposes of calculating the amount of Net Cash Proceeds, fees, commissions and other costs and expenses payable to the Borrower or a Restricted Subsidiary shall be disregarded.
“Non-Defaulting Lender” shall mean, at any time, a Lender that is not a Defaulting Lender.
“Note” has the meaning as set forth in Section 2.10(b).
“Notice of Conversion/Continuation” shall mean the notice given by the Borrower to the Administrative Agent in respect of the conversion or continuation of an outstanding Borrowing as provided in Section 2.7(b).
“Notice of Revolving Borrowing” has the meaning as set forth in Section 2.3.
“Obligations” shall mean, collectively, (a) all amounts owing by the Loan Parties to the Administrative Agent, the Issuing Bank, any Lender or the Arranger pursuant to or in connection with this Agreement or any other Loan Document or otherwise with respect to any Loan or Letter of Credit including without limitation, all principal, interest (including any interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to any Loan Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), all reimbursement obligations, fees, expenses, indemnification and reimbursement payments, costs and expenses (including all fees and expenses of counsel to the Administrative Agent, the Issuing Bank and any Lender incurred pursuant to this Agreement or any other Loan Document), whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, (b) all Hedging Obligations owed by any Loan Party to any Lender-Related Hedge Provider permitted by Section 7.10, (c) all Bank Product Obligations, together with all renewals, extensions, modifications or
refinancings of any of the foregoing and (d) obligations to pay, discharge and satisfy the Erroneous Payment Subrogation Rights; provided, that “Obligations” of a Guarantor shall exclude any Excluded Swap Obligations of such Guarantor.
“OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii) any liability of such Person under any sale and leaseback transactions that do not create a liability on the balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person.
“Offered Amount” has the meaning set forth in (k)(ii)(D)(1).
“Offered Discount” has the meaning set forth in (k)(ii)(D)(1).
“OID” shall mean original issue discount.
“Original Closing Date” shall mean December 22, 2016.
“OSHA” shall mean the Occupational Safety and Health Act of 1970, as amended from time to time, and any successor statute.
“Other Commitments” has the meaning set forth in Section 2.23(a).
“Other Connection Taxes” means, with respect to the Administrative Agent, any Lender, the Issuing Bank, or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” shall mean any and all present or future stamp, court, or documentary, intangible, recording, filing, or similar Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery, enforcement, or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document (except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.24 or 2.25)).
“Other Term Loans” has the meaning set forth in Section 2.23(a).
“Overnight Rate” shall mean, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent or the Issuing Bank, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in the Alternative Currency, the rate of interest per annum at which overnight deposits in the Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of the Administrative Agent or the Issuing Bank, as applicable, in the applicable offshore interbank market for such currency to major banks in such interbank market.
“Parent Company” shall mean, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.
“Participant” has the meaning set forth in Section 11.4(d).
“Participant Register” shall have the meaning set forth in Section 11.4(e).
“Participating Lender” has the meaning set forth in (k)(ii)(C)(2).
“Participating Member State” shall mean each state so described in any EMU Legislation.
“Patriot Act” has the meaning set forth in Section 11.14.
“Payment Office” shall mean, with respect to any currency, the office of the Administrative Agent located at 303 Peachtree Street, N.E., Atlanta, Georgia 30308, or such other location with respect to such currency as to which the Administrative Agent shall have given written notice to the Borrower and the other Lenders.
“Payment Recipient” has the meaning assigned to it in Section 9.15(a).
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA, and any successor entity performing similar functions.
“Permitted BIN Arrangement” shall mean, collectively, (a) that certain BIN arrangement evidenced by that certain BIN Sponsorship Agreement by and between EVO Merchant Services, LLC and Deutsche Bank Trust Company Americas (as assignee and successor of Deutsche Bank AG), dated as of January 19, 2012, as amended or otherwise modified from time to time (subject to the restrictions contained herein) (the “Existing BIN Sponsorship Agreement”), or (b) any agreement or agreements (a “Replacement BIN Sponsorship Agreement”) entered into by the Borrower or any Guarantor, on one hand, and another Person, on the other hand, designated by the Borrower to the Administrative Agent in replacement of the Existing BIN Sponsorship Agreement or the previous Replacement BIN Sponsorship Agreement, so long as such agreement or agreements are not on terms materially adverse, taken as a whole as determined by the Borrower in good faith, to the Borrower as compared to the terms under the Existing BIN Sponsorship Agreement or such previous Replacement BIN Sponsorship Agreement (as applicable), or otherwise reflect the market terms relating to similar agreements, taken as a whole as determined by the Borrower in good faith.
“Permitted Earnouts” shall mean, for any period, any obligation (other than obligations relating to any working capital adjustment or similar purchase price adjustment) of the Borrower or any Restricted Subsidiary to any Person (or an Affiliate of or successor to such Person) arising before, on or after the Restatement Effective Date that is (or, prior to a determination of the amount thereof, was) based on the financial performance of the Borrower or any Restricted Subsidiary and that is in substance, an amount owing on account of the unpaid portion of the purchase price for (a) Capital Stock of any Restricted Subsidiary, or (b) assets comprising the business, or a portion thereof, of the Borrower or any Restricted Subsidiary which, in either case, was acquired from such Person or an Affiliate of such Person; provided, however that, such obligations shall be unsecured.
“Permitted Encumbrances” shall mean:
Liens imposed by law for taxes, assessments or other governmental charges not yet delinquent or which are being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves are being maintained in accordance with GAAP;
statutory or common law Liens of landlords, carriers, warehousemen, mechanics, materialmen and other Liens imposed by law in the ordinary course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP;
pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;
deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
judgment and attachment liens not giving rise to an Event of Default or Liens created by or existing from any litigation or legal proceeding that are currently being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP;
customary rights of set-off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code or common law of banks or other financial institutions where Borrower or any of its Subsidiaries maintains deposits (other than deposits intended as cash collateral) in the ordinary course of business;
easements, zoning restrictions, rights-of-way, minor defects and other irregularities in title and similar encumbrances on real property that do not secure any monetary obligations and do not, in the aggregate, in any case materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of the Borrower and its Subsidiaries taken as a whole, or the use of the property for its intended purpose;
purported Liens evidenced by the filing of precautionary UCC financing statements or similar public filings arising in the ordinary course of business.
“Permitted First Priority Refinancing Debt” shall mean any secured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any other Loan Party in the form of one or more series of senior secured notes or loans; provided that (i) such Indebtedness is secured by a Lien that is pari passu to the Liens securing the Obligations (but without regard to the control of remedies), is subject to intercreditor arrangements reasonably acceptable to the Administrative Agent and the Borrower and is not secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Collateral except to the extent permitted by intercreditor arrangements reasonably acceptable to the Administrative Agent and the Borrower, (ii) such Indebtedness is not at any time guaranteed by any Restricted Subsidiary other than Guarantors and (iii) such Indebtedness does not mature prior to the date that is the Latest Maturity Date of, or have a Weighted Average Life to Maturity less than the Weighted Average Life to Maturity of, any Term Loan outstanding at the time such Indebtedness is incurred or issued. Permitted First Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Holders” shall mean each of (i) Madison Dearborn Partners, LLC and any of its Affiliates and funds or partnerships managed or advised by any of them or any of their respective Affiliates but not including, however, any portfolio company of any of the foregoing, (ii) the Management
Stockholders, (iii) Blueapple, Inc., (iv) any Permitted Transferee of any of the foregoing Persons; and (v) any “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Restatement Effective Date) including any of the foregoing Persons, so long as any combination of such foregoing Persons referred to in clauses (i), (ii), (iii) and (iv) shall hold directly or indirectly a majority of the aggregate voting interests in the Capital Stock of the Borrower held by all members of such combination.
“Permitted Intercompany Debt” shall mean any Indebtedness of the Borrower or any Subsidiary that is extended by the Borrower or a Subsidiary to the Borrower or another Subsidiary, as applicable; provided that the aggregate amount of such Indebtedness owed by any Unrestricted Subsidiary to the Borrower or a Restricted Subsidiary shall not exceed $25,000,000.
“Permitted Junior Priority Refinancing Debt” shall mean secured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any other Loan Party in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans; provided that (i) such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the Liens securing the Obligations and the obligations in respect of any Permitted First Priority Refinancing Debt, is subject to intercreditor agreements reasonably acceptable to the Administrative Agent, and is not secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Collateral except to the extent permitted by intercreditor arrangements reasonably acceptable to the Borrower and the Administrative Agent, and (ii) such Indebtedness may be secured by a Lien on the Collateral that is junior to the Liens securing the Obligations and the obligations in respect of any Permitted First Priority Refinancing Debt, notwithstanding any provision to the contrary contained in the definition of “Credit Agreement Refinancing Indebtedness”. Permitted Junior Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Refinancing” shall mean, with respect to any Person, any modification, refinancing, refunding, renewal, restructuring, replacement or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, restructured, refunded, renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium thereon plus other amounts owing or paid related to such Indebtedness, and fees and expenses incurred, in connection with such modification, refinancing, refunding, renewal, restructuring, replacement or extension and by an amount equal to any existing commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.1(c), such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended, and (c) if such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations on terms (i) at least as favorable (taken as a whole) (as reasonably determined by the Borrower) to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended, and such modification, refinancing, refunding, renewal, replacement or extension is incurred by one or more Persons who is an obligor of the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended or (ii) otherwise reasonably acceptable to the Administrative Agent. For the avoidance of doubt, (a) if the refinancing Indebtedness was incurred in respect of Indebtedness originally incurred under Section 7.1(w) or (x), such refinancing Indebtedness will continue to be treated as outstanding Credit Agreement Refinancing Indebtedness or Other Term Loans secured on the basis of the original Indebtedness, regardless if secured on the same basis as such Indebtedness was originally incurred, unless and until such Refinancing Indebtedness may be reclassified pursuant to the last paragraph of Section 7.1 and (b) if such Permitted Refinancing is secured by the
Collateral, it shall be subject to intercreditor arrangements reasonably acceptable to the Borrower and the Administrative Agent.
“Permitted Reorganizations” shall mean transactions, re-organizations and other activities related to tax planning or in connection with tax receivable agreements and re-organization, so long as the security interest of the Administrative Agent, on behalf of the Lenders, in the Collateral, taken as a whole, is not materially impaired.
“Permitted Repricing Amendment” shall have the meaning set forth in Section 11.2(b).
“Permitted Subordinated Debt” shall mean any Indebtedness of the Borrower or any Restricted Subsidiary (including any seller-financed Indebtedness) (i) that is unsecured and expressly subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent and (ii) that matures by its terms no earlier than 90 days after the Latest Maturity Date then in effect with no scheduled principal payments permitted prior to such maturity.
“Permitted Tax Distributions” shall mean distributions by the Borrower, with respect to such periods the Borrower is treated as a pass-through or disregarded entity for federal, state and/or local income tax purposes (a “Flow-Through Entity”), to its members, partners or shareholders in an amount equal to the aggregate Taxes determined by multiplying (1) the highest combined tax rate (including all applicable federal, state, local and foreign taxes determined with reference to income, including without limitation taxes imposed under Code Section 1411, and taking into account the deductibility (including applicable limitations on deductibility) of state and local income taxes for federal income tax purposes) applicable to any direct or indirect (through other Flow-Through Entities) holder of Capital Stock of such Flow Through Entity by (2) the aggregate taxable income of the Borrower (determined and calculated (i)by taking into account, for the avoidance of doubt, the effect of any tax basis adjustment under Sections 734 or 743 of the Code and any other tax benefit accruing for such period to a member as a result of payments made in connection with a tax receivable agreement; (ii) prior to any deduction for any guaranteed payments under Code Section 707(c); and (iii) by including any gain realized and allocable under Code Section 704(c); any determinations made by giving effect to the adjustments in clauses (i), (ii) and (iii) being referred to as “Adjusted” or “as Adjusted”) for the period to which the distribution relates allocated to holders of Capital Stock of the Borrower as estimated in good faith by the Borrower, taking into account all operating losses, as Adjusted, of the Borrower for prior periods, to the extent such Adjusted losses were not previously used to reduce taxable income, as Adjusted, for purposes of this determination in prior periods, on a quarterly basis at least ten days in advance of the due date for a corporation’s quarterly estimated U.S. federal income tax payment or such more frequent basis as any such Taxes would be required to be paid; provided, that if the amounts initially distributed with respect to a taxable year (the “Distributed Amounts”) exceed the amount that would have been distributed for such year if the distributions had been made in accordance with the Borrower’s Adjusted actual taxable income for such taxable year (the “Actual Amount”), then such excess shall be credited against the next Permitted Tax Distribution permitted to be made for subsequent periods, and if the Actual Amount exceeds the Distributed Amount, the Borrower shall immediately be permitted to distribute an amount equal to such excess as a Permitted Tax Distribution.
“Permitted Transferee” shall mean (a) in the case of Madison Dearborn Partners, LLC, (i) any of its managing directors, general partners, limited partners, directors, officers or employees, (ii) the heirs, executors, administrators, testamentary trustees, legatees or beneficiaries of any Persons in the preceding clause (i)and (iii) any trust, the beneficiaries of which, or a corporation or partnership, the stockholders or partners of which, include only a Person in the preceding clause (i), his or her spouse or former spouse, parents, siblings, members of his or her immediate family (including adopted children and step-children) and/or direct lineal descendants; and (b) in the case of any Management Stockholder, (i) his or her executor, administrator, testamentary trustee, legatee or beneficiaries, (ii) his or her spouse or former spouse, parents,
siblings, members of his or her immediate family (including adopted children and step-children) and/or direct lineal descendants or (iii) a trust, the beneficiaries of which, or a corporation or partnership, the stockholders or partners of which, include only a Management Stockholder and his or her spouse or former spouse, parents, siblings, members of his or her immediate family (including adopted children) and/or direct lineal descendants.
“Permitted Unsecured Refinancing Debt” shall mean unsecured Indebtedness (including any unsecured Registered Equivalent Notes) incurred by the Borrower or any Loan Party in the form of one or more series of senior unsecured notes or loans; provided that such Indebtedness otherwise constitutes Credit Agreement Refinancing Indebtedness.
“Person” shall mean any individual, partnership, firm, corporation, association, joint venture, limited liability company, trust or other entity, or any Governmental Authority.
“Peso Rate” means, with respect to any Loan denominated in Mexican Pesos, the rate per annum equal to the Interbanking Equilibrium Interest Rate (“TIIE”), or a comparable or successor rate which rate is approved by the Administrative Agent, as published by Banco de Mexico in the Federation’s Official Gazette (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 2:00 p.m. (Mexico City, Mexico time) on the Reference Time with a term equivalent to such Interest Period.
“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Pro Forma Adjustments” shall have the meaning set forth in the definition of “Pro Forma Basis”.
“Pro Forma Basis” or “pro forma basis” shall mean, with respect to any Specified Transaction that has been made (1) during the applicable Test Period or (2) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio or test or basket is made, that for purposes of calculating Consolidated EBITDA (including any basket that is based on a percentage of Consolidated EBITDA), the financial covenant set forth in Article VI, and other financial ratios and tests, such transaction shall be deemed to have occurred as of the first day of the applicable Test Period, with any incurrence or repayment of any Indebtedness in connection therewith to be deemed to have incurred as of the last day of the applicable Test Period. In connection with the foregoing, (a) with respect to any Disposition or Recovery Event, (i) income statement and cash flow statement items (whether positive or negative) attributable to the property the subject of such Disposition or Recovery Event shall be excluded to the extent relating to any period occurring prior to the date of such Disposition or Recovery Event and (ii) Indebtedness which is retired shall be excluded and deemed to have been retired as of the last day of the applicable period and (b) with respect to any permitted acquisition or other Investment, (i) income statement and cash flow statement items attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement and cash flow statement items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.1 and (B) such items are supported by financial statements, or other information reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed by the Borrower or any Restricted Subsidiary (including the Person or property acquired) in connection with such transaction and any Indebtedness of the Person or property acquired which is not retired in connection with such transaction (A) shall be deemed to have been incurred as of the last day of the applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period
for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination. Notwithstanding anything to the contrary contained herein, Consolidated EBITDA (other than for the purpose of calculating Consolidated Excess Cash Flow) shall be determined subject to pro forma adjustments (“Pro Forma Adjustments”) which are reasonably attributable to such Specified Transactions that are factually supportable, and which reflect the amount of “run rate” cost savings, operating expense reductions, other operating improvements and synergies with respect to Specified Transactions to the extent identifiable, quantifiable and reasonably attributable to and reasonably anticipated to result from actions taken or expected to be taken or committed to be taken within 18 months of the applicable Specified Transaction, as certified by the chief financial officer or another senior financial Responsible Officer of the Borrower (it being understood that Pro Forma Adjustments need not be prepared in compliance with Regulation S-X of the Exchange Act, provided that, the aggregate amount of “run rate” cost savings, operating expense reductions, other operating improvements and synergies permitted to be added back pursuant to this sentence for any period shall not exceed, together with any amounts added back pursuant to clauses (b)(xvii) and (b)(xviii) of the definition of “Consolidated EBITDA”, 25% of Consolidated EBITDA (after giving effect to the Pro Forma Adjustments) for such period. All the aforementioned adjustments to Consolidated EBITDA shall be added back thereto as if each applicable Specified Transaction had occurred at the beginning of the applicable calculation period and as if such cost savings, operating expense reductions, other operating improvements and synergies were realized during the entirety of such period, in each case without duplication of any amount added back to Consolidated EBITDA pursuant to clauses (b)(i) through (xix) of the definition of “Consolidated EBITDA” and net of the amount of actual benefits realized during the applicable period. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis or on a Pro Forma Basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated Leverage Ratio for purposes of the definition of “Applicable Margin” and determining actual compliance with Section 6.1 (other than for the purpose of determining pro forma compliance with Section 6.1), each of which shall be based on the financial statements delivered pursuant to Section 5.1(a) or Section 5.1(b), as applicable, for the relevant Test Period.
“Pro Rata Share” shall mean (a) with respect to any Commitment of any Lender at any time, a percentage, the numerator of which shall be such Commitment of such Lender (or if such Commitments have been terminated or expired or the Loans have been declared to be due and payable, such Lender’s Revolving Credit Exposure or Term Loan, as applicable), and the denominator of which shall be the sum of such Commitments of all Lenders (or if such Commitments have been terminated or expired or the Loans have been declared to be due and payable, all Revolving Credit Exposure or Term Loans, as applicable, of all Lenders) and (b) with respect to all Commitments of any Lender at any time, the numerator of which shall be the sum of such Lender’s Revolving Commitment (or if such Revolving Commitments have been terminated or expired or the Loans have been declared to be due and payable, such Lender’s Revolving Credit Exposure) and Term Loans owing to such Lender and the denominator of which shall be the sum of all Lenders’ Revolving Commitments (or if such Revolving Commitments have been terminated or expired or the Loans have been declared to be due and payable, all Revolving Credit Exposure of all Lenders funded under such Commitments) and the Term Loans.
“PTE” shall mean a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Qualified Capital Stock” shall mean any Capital Stock that is not Disqualified Capital Stock.
“Qualified ECP Guarantor” shall mean, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time under §1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualifying Lender” has the meaning set forth in (k)(ii)(D)(3).
“Recovery Event” shall mean any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Borrower or any Restricted Subsidiary, but excluding any such event that is subject to business interruption insurance or cyber insurance and excluding any proceeds from the Santander Settlement.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Adjusted LIBO Rate, 11:00 a.m. (London time) on the day that is two (2) Business Days preceding the date of such setting, (2) if such Benchmark is the EURIBOR Screen Rate, 10:00 a.m. (London time) two TARGET Days preceding the date of such setting, (3) if such Benchmark is Adjusted Daily Simple RFR, then four (4) Business Days prior to such setting and (4) if such Benchmark is not the Adjusted LIBO Rate, Adjusted Daily Simple RFR or Adjusted EURIBOR, the time determined by the Administrative Agent in its reasonable discretion.
“Refinanced Debt” has the meaning set forth in the definition of “Credit Agreement Refinancing Indebtedness.”
“Refinanced Term Loans” has the meaning set forth in Section 11.2(b).
“Refinancing Amendment” shall mean an amendment to this Agreement executed by each of (a) the Borrower, (b) the Administrative Agent, (c) each Additional Refinancing Lender and (d) each Lender that agrees to provide any portion of Refinancing Term Loans, Refinancing Revolving Commitments or Refinancing Revolving Loans incurred pursuant thereto, in accordance with Section 2.27.
“Refinancing Revolving Commitments” shall mean one or more Classes of Revolving Commitments hereunder that result from a Refinancing Amendment.
“Refinancing Revolving Loans” shall mean one or more Classes of Revolving Loans that result from a Refinancing Amendment.
“Refinancing Series” shall mean all Refinancing Term Loans, Refinancing Term Commitments, Refinancing Revolving Loans, or Refinancing Revolving Commitments that are established pursuant to the same Refinancing Amendment (or any subsequent Refinancing Amendment to the extent such Refinancing Amendment expressly provides that the Refinancing Term Loans, Refinancing Term Commitments, Refinancing Revolving Loans or Refinancing Revolving Commitments provided for therein are intended to be a part of any previously established Refinancing Series) and that provide for the same All-In Yield and, if applicable, amortization schedule.
“Refinancing Term Commitments” shall mean one or more term loan commitments hereunder that fund Refinancing Term Loans of the applicable Refinancing Series hereunder pursuant to a Refinancing Amendment.
“Refinancing Term Loans” shall mean one or more Classes of Term Loans that result from a Refinancing Amendment.
“Registered Equivalent Notes” shall mean, with respect to any notes originally issued in an offering pursuant to Rule 144A under the Securities Act or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
“Regulation T” shall mean Regulation T of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
“Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
“Regulation X” shall mean Regulation X of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
“Rejection Notice” shall have the meaning set forth in Section 2.12(g).
“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective managers, administrators, trustees, partners, directors, officers, employees, agents, advisors or other representatives of such Person and such Person’s Affiliates.
“Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.
“Replacement BIN Sponsorship Agreement” has the meaning ascribed to such term in the definition of “Permitted BIN Arrangement”.
“Relevant Governmental Body” means (a) with respect to Loans denominated in Dollars, the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York, (b) with respect to Loans denominated in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto, (c) with respect to Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto, (d) with respect to Loans denominated in Mexican Pesos, the Banco de México, or a committee officially endorsed or convened by the Banco de México or, in each case, any successor thereto and (e) with respect to Loans denominated in any other Alternative Currency, (i) the central bank for the currency in which such Loan is denominated or any central bank or other supervisor which is responsible for supervising either (x) such successor rate or (y) the administrator of such successor rate or (ii) any working group or committee officially endorsed or convened by (w) the central bank for the currency in which such successor rate is denominated, (x) any central bank or other supervisor that is responsible for supervising either (A) such successor rate or (B) the administrator of such successor rate, (y) a group of those central banks or other supervisors or (z) the Financial Stability Board or any part thereof.
“Relevant Rate” means (i) with respect to any Borrowing denominated in Dollars, the Adjusted LIBO Rate, (ii) with respect to any Borrowing denominated in Euros, Adjusted EURIBOR, (iii) with respect to any Borrowing denominated in Pounds Sterling, the Adjusted Daily Simple RFR or (iv) with respect to any Borrowing denominated in Mexican Pesos, the Peso Rate, as applicable.
“Relevant Screen Rate” means (i) with respect to any Borrowing denominated in Dollars, the LIBOR Reference Rate, or (ii) with respect to any Borrowing denominated in Euros, the EURIBOR Screen Rate, as applicable.
“Required Lenders” shall mean, at any time, Lenders holding more than 50% of the aggregate outstanding Revolving Commitments and Term Loans at such time or if the Lenders have no Commitments outstanding, then Lenders holding more than 50% of the aggregate outstanding Revolving Credit Exposure and Term Loans at such time; provided that to the extent that any Lender is a Defaulting Lender, such Defaulting Lender and all of its Revolving Commitments, Revolving Credit Exposure and Term Loans shall be excluded for purposes of determining Required Lenders. The Required Lenders of a Class (which shall include the terms “Required Dollar Lenders” and “Required Multicurrency Lenders”) means Lenders having Revolving Credit Exposures and unused Commitments or Term Loans, as applicable, of such Class representing more than 50% of the sum of the total Revolving Credit Exposures and unused Commitments or Term Loans, as applicable, of such Class at such time.
“Requirement of Law” for any Person shall mean the articles or certificate of incorporation, bylaws, partnership certificate and agreement, or limited liability company certificate of organization and agreement, as the case may be, and other organizational and governing documents of such Person, and any Law, treaty, rule or regulation, or determination of a Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” shall mean, with respect to any Person, any of the president, the chief executive officer, the chief operating officer, the chief financial officer or the treasurer of such Person or such other representative of such Person as may be designated in writing by any one of the foregoing with the consent of the Administrative Agent; and, with respect to the financial covenants only, the chief financial officer or the treasurer of such Person.
“Restatement Effective Date” shall mean November 1, 2021.
“Restricted Payment” shall mean, for any Person, any dividend or distribution on any class of its Capital Stock, or any payment on account of the purchase, redemption, retirement, defeasance or other acquisition of any shares of its Capital Stock or any options, warrants or other rights to purchase such Capital Stock, whether now or hereafter outstanding.
“Restricted Subsidiary” shall mean any Subsidiary of the Borrower other than an Unrestricted Subsidiary, including any Unrestricted Subsidiary that is re-designated as a Restricted Subsidiary in accordance with the terms hereof (including without limitation, the provisions set forth in the definition of the term “Unrestricted Subsidiary”).
“Revaluation Date” shall mean (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of a Eurodollar Loan denominated in the Alternative Currency, (ii) each date of a continuation of a Eurodollar Loan denominated in the Alternative Currency pursuant to Section 2.7, and (iii) such additional dates as the Administrative Agent shall reasonably determine or the Required Lenders shall reasonably require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in the Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the Issuing Bank under any Letter of Credit
denominated in the Alternative Currency and (iv) such additional dates as the Administrative Agent or the Issuing Bank shall reasonably determine or the Required Lenders shall reasonably require.
“Revolver Extension Request” has the meaning set forth in (bb)(ii).
“Revolver Extension Series” has the meaning set forth in (bb)(ii).
“Revolving Commitment” shall mean, with respect to each Lender, the Dollar Commitment or Multicurrency Commitment of such Lender, as applicable, initially in the amount set forth on Schedule I, or in the case of a Person becoming a Lender after the Restatement Effective Date, the amount of the assigned “Dollar Commitment” or “Multicurrency Commitment,” as applicable, as provided in the Assignment and Acceptance executed by such Person as an assignee, or the joinder executed by such Person, in each case as such Commitment may subsequently be increased or decreased pursuant to terms hereof, including pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Assumption, (ii) an Incremental Amendment, (iii) a Refinancing Amendment or (iv) an Extension Amendment.
“Revolving Commitment Increase” has the meaning set forth in (w)(i).
“Revolving Commitment Termination Date” shall mean the earlier of (i) November 1, 2026 and (ii) the date on which the Revolving Commitments are terminated pursuant to Section 2.8 or 8.1.
“Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of the Dollar Equivalent amount of the outstanding principal amount of such Lender’s Revolving Dollar Credit Exposure and Revolving Multicurrency Credit Exposure at such time.
“Revolving Dollar Credit Exposure” shall mean, with respect to any Dollar Lender at any time, the outstanding principal amount of such Lender’s Dollar Loans at such time.
“Revolving Lender” shall mean, at any time, any Lender that has a Revolving Commitment at such time or, if the Revolving Commitments have terminated, Revolving Credit Exposure.
“Revolving Loan” shall mean a loan made by a Lender to the Borrower under its Revolving Commitment, which may either be a Base Rate Loan or a Eurodollar Loan.
“Revolving Multicurrency Credit Exposure” shall mean, with respect to any Multicurrency Lender at any time, the Dollar Equivalent of the sum of the outstanding principal amount of such Lender’s Multicurrency Loans, and its LC Exposure at such time.
“RFR” means, for any RFR Loan denominated in Pounds Sterling, SONIA.
“RFR Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which banks are closed for general business in London.
“RFR Interest Day” has the meaning assigned to such term in the definition of “Daily Simple RFR”.
“RFR Loan” means a Revolver Loan that bears interest at a rate based on the Adjusted Daily Simple RFR.
“RFR Lookback Day” has the meaning assigned to such term in the definition of “Daily Simple RFR”.
“S&P” shall mean S&P Global Ratings and any official successor thereto.
“Sale and Leaseback Transaction” shall mean, with respect to any Person, any arrangement, directly or indirectly, whereby such Person shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.
“Sanctioned Country” shall mean, at any time, a country or territory that is, or whose government is, the subject or target of any comprehensive Sanctions, which is as of the Closing Date, the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria.
“Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union or any European Union member state, (b) any Person located, organized or resident in a Sanctioned Country or (c) any Person controlled by or owned 50% or more by any such Person.
“Sanctions” shall mean economic or financial sanctions or trade embargoes administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
“Santander Settlement” shall mean any judgment, settlement or other payment made to the Borrower or any Restricted Subsidiary in connection with the following lawsuit: Universalpay, Entidad De Pago, S.L. v. Banco Santander, S.A., Ordinary Proceedings No. 156/2021 (First Instance Court No. 81 In and for Madrid, Spain) or any related claim or action or any action based on substantially similar claims or facts..
“SEC” shall mean the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Restatement Agreement” shall mean that certain Second Restatement Agreement to Amended and Restated First Lien Credit Agreement dated as of November 1, 2021 among the Borrower, the Guarantors party thereto, Citibank, N.A., as existing administrative agent, Truist Bank as successor administrative agent, and the lenders party thereto.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Securitization Transaction” shall mean, with respect to any Person, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or Affiliate of such Person.
“Security Agreement” shall mean the security and pledge agreement dated as of the Original Closing Date, as amended, supplemented and modified from time to time prior to the Restatement Effective Date and as reaffirmed by the Second Restatement Agreement, by and among the Administrative Agent and the Loan Parties party thereto.
“Settlement” shall mean the transfer of cash or other property with respect to any credit or debit card charge, check or other instrument, electronic funds transfer, or other type of paper-based or electronic
payment, transfer, or charge transaction for which a Person acts as a processor, remitter, funds recipient or funds transmitter in the ordinary course of its business.
“Settlement Asset” shall mean any cash, receivable or other property, including a Settlement Receivable, due or conveyed to a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person or an Affiliate of such Person, including, but not limited to, (i) the “Collateral” as defined in the Wells Fargo Settlement Facility Agreement and (ii) the “Collateral” as defined in the Deutsche Bank Settlement Facility Agreement.
“Settlement Lien” shall mean a Lien securing obligations arising under or related to any Settlement or Settlement Obligation that attaches to (i) Settlement Assets (including any assignment of Settlement Assets in consideration of Settlement Payments), (ii) any intraday or overnight overdraft or automated clearing house exposure or asset specifically related to Settlement Assets, (iii) loss reserve accounts specifically related to Settlement Assets, (iv) merchant suspense funds specifically related to Settlement Assets, (v) rights under any BIN/ISO Agreement or fees paid or payable under any BIN/ISO Agreement or (vi) Excluded Merchant Reserve and Settlement Accounts.
“Settlement Obligations” shall mean any payment or reimbursement obligation in respect of a Settlement Payment, including obligations under the Wells Fargo Settlement Facility Agreement and under the Deutsche Bank Settlement Facility Agreement or any other settlement facility entered into by Borrower or a Restricted Subsidiary.
“Settlement Payment” shall mean the transfer, or contractual undertaking (including by automated clearing house transaction) to effect a transfer, of cash or other property to effect a Settlement, including the contractual undertaking, advances and extensions of credit under the Wells Fargo Settlement Facility Agreement and the Deutsche Bank Settlement Facility Agreement or any other settlement facility entered into by Borrower or a Restricted Subsidiary.
“Settlement Receivable” shall mean (a) receivables from card associations for transactions processed on behalf of merchants and (b) receivables from merchants for the portion of the discount fee related to reimbursement of the interchange expense and other fees payable to card associations, including (i) the “Merchant Accounts Receivable” as defined in the Wells Fargo Settlement Facility Agreement and (ii) the “Settlement Receivable” as defined in the Deutsche Bank Settlement Facility Agreement.
“SOFR” means a rate per annum equal to the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time).
“SONIA” means, with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day.
“SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“Solicited Discount Proration” has the meaning set forth in (k)(ii)(D)(3).
“Solicited Discounted Prepayment Amount” has the meaning set forth in (k)(ii)(D)(1).
“Solicited Discounted Prepayment Notice” shall mean a written notice of the Borrower of Solicited Discounted Prepayment Offers made pursuant to (k)(ii)(D).
“Solicited Discounted Prepayment Offer” shall mean the irrevocable written offer by each Lender submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.
“Solicited Discounted Prepayment Response Date” has the meaning set forth in (k)(ii)(D)(1).
“Solvent” shall mean, with respect to the Borrower on the Restatement Effective Date, after giving effect to the Transactions, that on such date (a) the sum of the debt (including contingent liabilities) of the Borrower and its Subsidiaries, on a consolidated basis, does not exceed the present fair saleable value (on a going concern basis) of the assets of the Borrower and its Subsidiaries, on a consolidated basis; (b) the capital of the Borrower and its Subsidiaries, on a consolidated basis, is not unreasonably small in relation to the business of the Borrower and its Subsidiaries, on a consolidated basis, contemplated as of such date; and (c) the Borrower and its Subsidiaries, on a consolidated basis, do not intend to incur, or believe that they will incur, debts including current obligations beyond their ability to pay such debt as it matures in the ordinary course of business. The amount of contingent liabilities (such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, represents the amount that would reasonably be expected to become an actual or matured liability.
“Specified Discount” has the meaning set forth in Section 2.11(b)(ii)(A).
“Specified Discount Prepayment Amount” has the meaning set forth in Section 2.11(b)(ii)(A).
“Specified Discount Prepayment Notice” shall mean a written notice of the Borrower Offer of Specified Discount Prepayment made pursuant to (k)(ii)(B).
“Specified Discount Prepayment Response” shall mean the irrevocable written response by each Lender to a Specified Discount Prepayment Notice.
“Specified Discount Prepayment Response Date” has the meaning set forth in Section 2.11(b)(ii)(A).
“Specified Discount Proration” has the meaning set forth in (k)(ii)(B)(3).
“Specified Loan Party” shall mean any Loan Party that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 10.8).
“Specified Transaction” shall mean any Investment that results in a Person becoming a Restricted Subsidiary, any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of, or the Capital Stock of, another Person, any other permitted acquisition or other Investment (including, without limitation, any acquisitions of, or joint ventures with respect to, Restricted Subsidiaries), any Disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary, any Disposition of a business unit, line of business or division of the Borrower or a Restricted Subsidiary, or any incurrence, assumption or repayment of Indebtedness (including, without limitation, any increase in Commitments or incurrence
of Incremental Loans pursuant to Section 2.23 and any amendments, waivers, consents, or repayments in connection with any incurrence thereof, but excluding (x) Indebtedness incurred or repaid under any revolving credit facility and (y) any scheduled payments of interest or amortization with respect to such Indebtedness), that by the terms of this Agreement requires such test to be calculated on a “Pro Forma Basis” or on a “pro forma basis”. It is understood and agreed that the term “Specified Transaction” shall also include (a) the facility and infrastructure consolidation related to the Borrower’s Affiliates as previously disclosed to the Administrative Agent and (b) the conversion of the “back end processing” off the Global Payments Direct, Inc. system.
“Spot Rate” shall mean, for a currency, the rate determined by the Administrative Agent or the Issuing Bank, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the Issuing Bank may obtain such spot rate from another financial institution designated by the Administrative Agent or the Issuing Bank if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that the Issuing Bank may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in the Alternative Currency.
“Submitted Amount” has the meaning set forth in (k)(ii)(C)(1).
“Submitted Discount” has the meaning set forth in (k)(ii)(C)(1).
“Subsidiary” shall mean, with respect to any Person (the “parent”), any corporation, partnership, joint venture, limited liability company, association or other entity (a) the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, and (b) either (i) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (ii) the management or operation of which is, as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise indicated, all references to “Subsidiary” hereunder shall mean a Subsidiary of the Borrower.
“Swap Obligations” shall mean with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Syndication Agent” means Citizens Bank, N.A., Fifth Third Bank, Regions Capital Markets, a division of Regions Bank and Wells Fargo Securities, LLC, in their capacity as co-syndication agents.
“Synthetic Lease” shall mean a lease transaction under which the parties intend that (i) the lease will be treated as an “operating lease” by the lessee pursuant to Accounting Standards Codification Sections 840-10 & 840-20, as amended and (ii) the lessee will be entitled to various tax and other benefits ordinarily available to owners (as opposed to lessees) of like property.
“Synthetic Lease Obligations” shall mean, with respect to any Person, the sum of (i) all remaining rental obligations of such Person as lessee under Synthetic Leases which are attributable to principal and, without duplication, (ii) all rental and purchase price payment obligations of such Person under such Synthetic Leases assuming such Person exercises the option to purchase the lease property at the end of the lease term.
“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Lender” shall mean, at any time, any Lender that has (a) an Term Loan Commitment, an Incremental Term Commitment, a Refinancing Term Commitment or a commitment to make Replacement Term Loans or (b) a Term Loan at such time.
“Term Loan” shall mean the loans made pursuant to Section 2.5, any Extended Term Loan, Incremental Term Loan, Refinancing Term Loan or Replacement Term Loan, as the context may require.
“Term Loan Commitment” shall mean, each Term Lender’s commitment set forth in the Second Restatement Agreement to make a Term Loan on the Restatement Effective Date in an aggregate amount equal to $588,000,000.
“Term Loan Extension Request” has the meaning set forth in (bb)(i).
“Term Loan Extension Series” has the meaning set forth in (bb)(i).
“Term SOFR” means, for the applicable corresponding tenor, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Test Period” shall mean, for any date of determination under this Agreement and the other applicable Loan Documents, the four consecutive fiscal quarters of the Borrower most recently ended as of such date of determination for which financial statements are available.
“Transformative Acquisition” shall mean any acquisition by Borrower or any other Restricted Subsidiary that is not permitted by the terms of this Agreement immediately prior to the consummation of such acquisition.
“Treasury Regulations” means the regulations promulgated by the IRS and the United States Department of Treasury under the Code.
“Type”, when used in reference to a Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate, the Base Rate, Adjusted EURIBOR, the Peso Rate or Adjusted Daily Simple RFR.
“U.S. Person” means “United States person” as defined in Section 7701(a)(30) of the Code.
“UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“United States” or “U.S.” shall mean the United States of America.
“Unrestricted Subsidiary” shall mean any Subsidiary the Borrower designates in writing to the Administrative Agent as being an Unrestricted Subsidiary and satisfies the conditions set forth in the following sentence of this definition. The Borrower may designate such Subsidiary as an Unrestricted Subsidiary, and may subsequently re-designate any Unrestricted Subsidiary as a Restricted Subsidiary by giving written notice of such re-designation to the Administrative Agent, so long as (i) no Event of Default is in existence or would be caused by such designation or re-designation and (ii) such Subsidiary does not own (or hold exclusive license to) any Material Intellectual Property.
“U.S. Tax Compliance Certificate” shall have the meaning set forth in Section 2.20(f).
“Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness, in each case, without giving effect to any reductions of amortization or other scheduled payments for periods where amortization has been reduced as a result of the prepayment of the applicable Indebtedness.
“Wells Fargo Settlement Facility Agreement” shall mean that certain Uncommitted Revolving Line of Credit Agreement, dated as of December 19, 2017, by and among Wells Fargo Bank, National Association, Evo Merchant Services, LLC and the Borrower, as amended, restated, supplemented or otherwise modified from time to time.
“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Withholding Agent” shall mean any Loan Party and the Administrative Agent.
“Write-Down and Conversion Powers” shall mean, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Alternative Currency, such amount shall be the Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of the Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the Issuing Bank, as the case may be.
the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated (and tested) on a Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Capital Stock at such time.
such Lender’s Multicurrency Commitment or (ii) the aggregate Revolving Multicurrency Credit Exposure of all Multicurrency Lenders exceeding the aggregate Multicurrency Commitments. Each Revolver Loan shall, at the option of the Borrower, be made or continued as, or converted into, part of one or more Borrowings that, unless specifically provided herein, shall consist entirely of (i) Base Rate Loans or Eurodollar Loans denominated in Dollars, (ii) Eurodollar Loans denominated in Euros, (iii) Eurodollar Loans denominated in Mexican Pesos and (iii) RFR Loans denominated in Sterling. During the Availability Period, the Borrower shall be entitled to borrow, prepay and reborrow Revolving Loans in accordance with the terms and conditions of this Agreement; provided, that the Borrower may not borrow or reborrow should there exist a Default or Event of Default.
Installment Date | Principal Amount |
---|---|
March 31, 2022 | $3,675,000 |
June 30, 2022 | $3,675,000 |
September 30, 2022 | $3,675,000 |
December 31, 2022 | $3,675,000 |
March 31, 2023 | $3,675,000 |
June 30, 2023 | $3,675,000 |
September 30, 2023 | $3,675,000 |
December 31, 2023 | $3,675,000 |
March 31, 2024 | $7,350,000 |
June 30, 2024 | $7,350,000 |
September 30, 2024 | $7,350,000 |
December 31, 2024 | $7,350,000 |
March 31, 2025 and the last day of each Fiscal Quarter thereafter | $11,025,000 |
provided, that, to the extent not previously paid, the aggregate unpaid principal balance of the Term Loan shall be due and payable on the Maturity Date.
The prepayments under this Section 2.12 shall be made without premium or penalty, and shall be accompanied by all accrued interest thereto.
Level | Consolidated | Commitment Fee Percentage |
1 | ≤ 2.25:1.0 | 0.25% |
2 | > 2.25:1.0 ≤ 2.75:1.0 | 0.25% |
3 | > 2.75:1.0 ≤ 3.25:1.0 | 0.25% |
4 | > 3.25:1.0 ≤ 3.75:1.0 | 0.375% |
5 | > 3.75:1.0 | 0.375% |
the Administrative Agent shall give written notice (or telephonic notice, promptly confirmed in writing) to the Borrower and to the Lenders as soon as practicable thereafter. Until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, the obligations of the Lenders to make Eurodollar Revolving Loans in the affected currency or currencies or to continue or convert outstanding Loans as or into Eurodollar Loans in the affected currency or currencies shall be suspended. Unless the Borrower notifies the Administrative Agent at least one (1) Business Day before the date of any Eurodollar Borrowing for which a Notice of Revolving Borrowing or Notice of
Conversion/Continuation has previously been given that it elects not to borrow on such date, then such Revolving Borrowing shall be made as a Base Rate Borrowing.
(b)Furthermore, if any Eurodollar Loans or RFR Loans are outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in Section 2.16(a) with respect to a Relevant Rate applicable to such Eurodollar Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new interest election request or a new Notice of Borrowing, (i) any Eurodollar Loan denominated in Dollars shall, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, a Base Rate Loan denominated in Dollars, (ii) for a Eurodollar Loan denominated in Euros or Mexican Pesos, such Loan shall, in the case of a continuation, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day) bear interest at the Central Bank Rate for Euros or Mexican Pesos, as applicable, plus the applicable CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for Euros or Mexican Pesos, as applicable, cannot be determined, any outstanding affected Eurodollar Loans shall, at the Administrative Borrower’s election prior to such day: (A) be prepaid by the Borrower on such day or (B) solely for the purpose of calculating the interest rate applicable to such Eurodollar Loan, such Eurodollar Loan denominated in Euros or Mexican Pesos shall be deemed to be a Eurodollar Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Eurodollar Loans denominated in Dollars at such time or (iii) for any RFR Loan denominated in Pounds Sterling, such Loan shall bear interest at the Central Bank Rate for Pounds Sterling plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for Pounds Sterling cannot be determined, any outstanding affected RFR Loans, at the Borrower’s election, shall either (A) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of Pounds Sterling) immediately or (B) be prepaid in full immediately. If any Lender invokes this Section 2.16, such Lender shall use reasonable efforts to notify the Administrative Borrower and the Administrative Agent when the conditions giving rise to such action no longer exists, provided, however, that such Lender shall have no liability to Loan Parties or to any other Person for its failure to provide such notice.
(c)Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) or (b) of clause (1) the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(d)In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time
to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e)The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.16, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.16.
(f)Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or the Adjusted LIBO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g)Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurodollar Borrowing of, conversion to or continuation of Eurodollar Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.
such notice, (a) the Borrower shall prepay or, if such Loans are in Dollars, convert such affected Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted LIBO Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans and (b) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Adjusted LIBO Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Adjusted LIBO Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Adjusted LIBO Rate. Notwithstanding the foregoing, the affected Lender shall, prior to giving such notice to the Administrative Agent, designate a different Applicable Lending Office if such designation would avoid the need for giving such notice and if such designation would not otherwise be disadvantageous to such Lender in the good faith exercise of its discretion.
and the result of any of the foregoing is to increase the cost to such Lender of making a Eurodollar Loan or RFR Loan or converting into, continuing or maintaining a Eurodollar Loan or to increase the cost to such Lender or the Issuing Bank of participating in or issuing any Letter of Credit or to reduce the amount received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or any other amount), then the Borrower shall promptly pay, upon receipt of the certificate referred to in the immediately following clause (c), such additional amount or amounts sufficient to compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.
(A) Any Lender that is entitled to an exemption from or reduction of withholding Tax under the Code, any treaty to which the United States is a party or otherwise, with respect to payments under this Agreement or any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by applicable Law or as reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in clauses (ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related Party of any of the foregoing shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to above), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided, that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to the extent of any actual direct damages (as opposed to special, indirect (including claims for lost profits or other consequential damages), or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that are caused by the Issuing Bank’s failure to exercise due care when determining whether drafts or other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree, that in the absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised due care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
Lender to execute and deliver an Assignment and Acceptance shall not impair the validity of the removal of such Non-Consenting Lender and the mandatory assignment of such Non-Consenting Lender’s Commitments and outstanding Loans pursuant to this Section 2.25 shall nevertheless be effective without the execution by such Non-Consenting Lender of an Assignment and Acceptance. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
Each Borrowing and each issuance, amendment, extension or renewal of any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section 3.2.
Each Loan Party represents and warrants to the Administrative Agent and each Lender as follows:
Subsidiaries and (d) will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Restricted Subsidiaries, except Liens (if any) created under the Loan Documents; in each case of the foregoing clauses (a), (b) and (c), except where it could not reasonably be expected to result in a Material Adverse Effect.
on the books of the Borrower or any such Restricted Subsidiary, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation under the Loan Documents (other than unasserted contingent reimbursement or indemnity obligations and for the avoidance of doubt, other than any Hedging Obligations or Bank Product Obligations) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:
Notwithstanding the foregoing, (i) the obligations in Sections 5.1(a), (b) and (d) may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (I) the applicable financial statements of the Borrower (or any direct or indirect parent of the Borrower) or (II) the
Borrower’s (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable filed with the SEC; (ii) in no event shall the requirements set forth in Section 5.1(f) require the Borrower or any of its Restricted Subsidiaries to provide any such information which (1) constitutes non-financial trade secrets or non-financial proprietary information, (2) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or (3) is subject to attorney-client or similar privilege or constitutes attorney work-product and (iii) with respect to financial statements delivered pursuant to Section 5.1(a) by EVO Payments, Inc. (or any other parent of the Borrower), upon the written request of the Administrative Agent, such financial statements shall be accompanied by information that explains in reasonable detail the differences between the information relating to EVO Payments, Inc. and its Subsidiaries, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, which information shall be certified by a Responsible Officer of the Borrower as having been fairly presented in all materials respects.
Each notice delivered under this Section 5.2 shall be accompanied by a written statement of a Responsible Officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
fide arm’s length third party contract, so long as such contract was not entered into solely for the purposes of circumventing such disclosure or (b) is subject to attorney-client or similar privilege or constitutes attorney work product.
Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, it is understood and agreed that the Borrower and the Guarantors shall not be required, nor shall the Administrative Agent be authorized, to (i) perfect the Liens in favor of the Administrative Agent by any means other than through (a) filings pursuant to the Uniform Commercial Code in the office of the secretary of state (or similar central filing office) of the relevant State(s), (b) filings in U.S. government offices with respect to intellectual property, (c) [reserved], or (d) delivery to the Administrative Agent to be held in its possession of all Collateral consisting of stock certificates and certificated indebtedness of the Borrower and its pledged Subsidiaries and instruments pursuant to the terms of the Security Agreement, (ii) enter into any source code escrow arrangement or register any intellectual property, (iii) enter into any deposit account control agreement or securities account control agreement with respect to any deposit account or securities account, or obtain any control agreements or take any other steps requiring perfection by “control” (except to the extent perfected through the filing of a UCC filing statement) or (iv) take any actions in or required by a jurisdiction other than the United States with respect to any assets located or titled outside of the United States.
Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, the Administrative Agent may grant extensions of time (without consents of any Lender) for the perfection of security interests in particular assets and the delivery of assets (including extensions beyond the Restatement Effective Date for the perfection of security interests in the assets of the Loan Parties on such
date) or any other compliance with the requirements for purposes of collateral actions or perfection where it reasonably determines, in consultation with the Borrower, that perfection or compliance cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement, the Collateral Documents or the other Loan Documents.
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation under the Loan Documents (other than unasserted contingent reimbursement or indemnity obligations and for the avoidance of doubt, other than any Hedging Obligations or Bank Product Obligations) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Loan Parties shall not and shall cause each Restricted Subsidiary not to:
calculation of compliance with this Section 6.1 shall be determined as of the last day of the then most recently ended Fiscal Quarter and shall not give Pro Forma Effect to any incurrence after such date.
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation under the Loan Documents (other than unasserted contingent reimbursement or indemnity obligations and for the avoidance of doubt, other than any Hedging Obligations or Bank Product Obligations) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:
For purposes of determining compliance with this Section 7.1, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in Section 7.1(a) through (z), the Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that all Indebtedness outstanding under the Loan Documents on the Restatement Effective Date will be deemed to be incurred in reliance on the exception in Section 7.1(a).
or a series of transactions) any assets of any other Person that constitute a business unit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”), except:
or, in the case of any Restricted Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to any Person other than the Borrower or another Restricted Subsidiary (or to qualify directors if required by applicable Law), except:
of changes in the market value of any Capital Stock or any Indebtedness) is not a Hedging Transaction entered into in the ordinary course of business to hedge or mitigate risks.
then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) of this Section 8.1) and at any time thereafter during the continuance of such event, the Administrative Agent may, and upon the written request of the Required Lenders shall, by written notice to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate the Commitments, whereupon the Commitment of each Lender shall terminate immediately, (ii) declare the principal of and any accrued interest on the Loans, and all other Obligations owing hereunder, to be, whereupon the same shall become, due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, (iii) exercise all remedies contained in any other Loan Document, and (iv) exercise any other remedies available at Law or in equity; and that, if an Event of Default specified in either clause (h) or (i) shall occur, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon, and all fees, and all other Obligations shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; provided that, it is understood and agreed that, with respect to an Event of Default under Section 6.1, at the written request of the Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the outstanding amount of the Revolving Commitments (or, if the Revolving Commitments have terminated, the aggregate Revolving Credit Exposure), the Administrative Agent shall, by written notice to the Borrower (i) terminate the Revolving Commitments, whereupon the Revolving Commitment of each Lender shall terminate immediately and (ii) declare the principal of and any accrued interest on the Revolving Credit Exposure to
be, whereupon the same shall become, due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section.
All amounts allocated pursuant to the foregoing clauses third through sixth to the Lenders as a result of amounts owed to the Lenders under the Loan Documents shall be allocated among, and distributed to, the Lenders pro rata based on their respective Pro Rata Shares; provided, that all amounts allocated to that portion of the LC Exposure comprised of the aggregate undrawn amount of all outstanding Letters of Credit pursuant to clause fifth and sixth shall be distributed to the Administrative Agent, rather than to the Lenders, and held by the Administrative Agent in an account in the name of the Administrative Agent for the benefit of the Issuing Bank and the Revolving Loan Lenders as cash collateral for the LC Exposure, such account to be administered in accordance with Section 2.22(g).
notice thereof (which notice shall include an express reference to such event being a “Default” or “Event of Default” hereunder) is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements, or other terms and conditions set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article III or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent may consult with legal counsel (including counsel for the Borrower) concerning all matters pertaining to such duties. The Administrative Agent and the Collateral Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent and the Collateral Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution
to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or not taken by it in accordance with the advice of such counsel, accountants or experts.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or the Issuing Bank in any such proceeding.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any guarantor from its obligations under this Agreement, pursuant to this Section 9.13.
Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Lender or Affiliate of a Lender that holds such Hedging Obligation or such Bank Product Obligation, as the case may be.
(ii)Subject to Section 11.4 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents or the other documents relating to the Obligations, the obligations of each Guarantor under this Agreement and the other Loan Documents shall not exceed an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under applicable Debtor Relief Laws.
With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that the Administrative Agent or any other holder of the Obligations exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents or any other document relating to the Obligations or against any other Person under any other guarantee of, or security for, any of the Obligations.
To any Loan Party: | EVO Payments International, LLC |
With a copy to: | EVO Payments International, LLC |
With a copy to
(not constituting notice): | King & Spalding LLP |
Attention: Amy Peters
E-mail address: apeters@kslaw.com
To the Administrative Agent: Truist Bank
3333 Peachtree Road
Atlanta, Georgia 30326
Attention: Brooks Asger
Telecopy Number: Brooks.Asger@Truist.com
With a copy to
(not constituting notice): | Truist Bank |
Agency Services
303 Peachtree Street, N.E. / 25th Floor
Atlanta, Georgia 30308
Attention: Agency Services Manager
Telecopy Number: Agency.Services@Truist.com
and
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: Alfred Xue
E-mail address: alfred.xue@lw.com
To the Issuing Bank: | Truist Bank |
25 Park Place, N.E. / Mail Code 3706 / 16th Floor
Atlanta, Georgia 30303
Attention: Standby Letter of Credit Dept.
Telecopy Number: (404) 588-8129
To any other Lender: | To the address or facsimile number, set forth in the Administrative Questionnaire or the Assignment and Acceptance executed by such Lender. |
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All such notices and other communications shall, when transmitted by overnight delivery, or faxed, be effective when delivered for overnight (next-day) delivery, or transmitted in legible form by facsimile machine, respectively, or if mailed, upon the third Business Day after the date deposited into the mail or if delivered, upon delivery; provided, that notices delivered to the Administrative Agent, the Issuing Bank shall not be effective until actually received by such Person at its address specified in this Section 11.1.
Any agreement of the Administrative Agent, the Issuing Bank and the Lenders herein to receive certain notices by telephone or facsimile is solely for the convenience and at the request of the Borrower. The Administrative Agent, the Issuing Bank and the Lenders shall be entitled to rely on the authority of any Person purporting to be a Person authorized by the Borrower to give such notice and the Administrative Agent, the Issuing Bank and the Lenders shall not have any liability to the Borrower or other Person on account of any action taken or not taken by the Administrative Agent, the Issuing Bank and the Lenders in reliance upon such telephonic or facsimile notice. The obligation of the Borrower to repay the Loans and all other Obligations hereunder shall not be affected in any way or to any extent by any failure of the Administrative Agent, the Issuing Bank and the Lenders to receive written confirmation of any telephonic or facsimile notice or the receipt by the Administrative Agent, the Issuing Bank and the Lenders of a confirmation which is at variance with the terms understood by the Administrative Agent, the Issuing Bank and the Lenders to be contained in any such telephonic or facsimile notice.
provided further, that no such agreement shall amend, modify or otherwise affect the rights, duties or obligations of the Administrative Agent or the Issuing Bank without the prior written consent of such Person. Notwithstanding anything to the contrary herein, (i) the Agency Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto; (ii) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended, and amounts payable to such Lender hereunder may not be permanently reduced without the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender); (iii) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 11.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement; (iv) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein; (v) (x) no Lender consent is required to effect an Incremental Amendment, Refinancing Amendment or Extension Amendment (except as expressly provided in Sections 2.23, 2.27 or 2.28 or in the following clause (y) or (z), as applicable), (y) in connection with an amendment that addresses solely a re-pricing transaction in which any Class of Term Loans is refinanced with a replacement Class of term loans bearing (or is modified in such a manner such that the resulting term loans bear) a lower All-In Yield (which may include other customary technical amendments related thereto, including providing that such replacement term loans may have a prepayment premium in connection therewith) (a “Permitted Repricing Amendment”), only the consent of the Lenders holding Term Loans subject to such permitted repricing transaction that will continue as a Lender in respect of the repriced tranche of Term Loans or modified Term Loans shall be required for such Permitted Repricing Amendment, and (z) in connection with an Extension Amendment, only the consent of the Lenders that will continue as a Lender in respect of the Extended Term Loans or Extended Revolving Commitments, as applicable, subject to such Extension Amendment shall be required for such Extension Amendment, (vi) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders, (vii) any applicable intercreditor agreement may be amended solely with the consent of the Administrative Agent to give effect thereto or to carry out the purposes thereof, (viii) except as set forth above in clauses (iii) and (iv) of this Section 11.2(b) preceding this proviso, there shall be no “class” voting requirement for amendments, modifications or supplements to the Loan Documents, (ix) if the Administrative Agent and Borrower shall have jointly identified an obvious error or any error or omission of a technical or administrative nature in the Loan Documents, then the Administrative Agent and Borrower shall be permitted to amend such provision
without further action or consent of any other party if the same is not objected to in writing by the Required Lenders to the Administrative Agent within five (5) Business Days following receipt of notice thereof, and (x) any Guaranty, Collateral Document and related documents may be, together with this Agreement, amended and/or waived with the consent of the Administrative Agent at the request of Borrower without the need for consent by any other Lender if such amendment or waiver is delivered in order to (1) comply with local law or advice of local counsel or (2) cause such Guaranty, Collateral Document or other document to be consistent with this Agreement and the other Loan Documents.
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans, Revolving Loans and L/C Obligations and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Borrower and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all or a portion of the outstanding Term Loans of any Class (“Refinanced Term Loans”) with one or more tranches of replacement term loans having different terms (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans plus accrued interest, fees, expenses and premium (but nothing in this clause (a) shall limit the ability of the Borrower to incur Incremental Loans of the same Class or of a different Class at the same time if such incurrence is otherwise permitted hereunder), (b) the Weighted Average Life to Maturity of Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans, at the time of such refinancing (except by virtue of amortization or prepayment of the Refinanced Term Loans prior to the time of such incurrence) and (c) such Replacement Term Loans shall otherwise constitute Credit Agreement Refinancing Indebtedness.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section 11.4, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 11.3 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (d) of this Section 11.4.
Each Affiliated Lender agrees to notify the Administrative Agent promptly (and in any event within 10 Business Days) if it acquires any Person who is also a Lender, and each Lender agrees to notify the Administrative Agent promptly (and in any event within 10 Business Days) if it becomes an Affiliated Lender.
Each Lender participating in any assignment to Affiliated Lenders acknowledges and agrees that in connection with such assignment, (1) the Affiliated Lenders then may have, and later may come into possession of Excluded Information, (2) such Lender has independently and, without reliance on the
Affiliated Lenders or any of their Subsidiaries, the Borrower or any of their Subsidiaries, the Administrative Agent or any other Agent-Related Persons, has made its own analysis and determination to participate in such assignment notwithstanding such Lender’s lack of knowledge of the Excluded Information, (3) none of the Borrower, Company Parties or any of their respective Affiliates shall be required to make any representation that it is not in possession of material non-public information, (4) none of the Affiliated Lenders or any of their Subsidiaries, the Borrower or their respective Subsidiaries, the Administrative Agent or any other of Administrative Agent’s Related Parties shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against the Affiliated Lenders and any of their Subsidiaries, the Borrower and their respective Subsidiaries, the Administrative Agent and any other of Administrative Agent’s Related Parties, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information and (5) that the Excluded Information may not be available to the Administrative Agent or the other Lenders.
Each Lender participating in any assignment pursuant to this Section 11.4(k) acknowledges and agrees that in connection with such assignment, (1) the Borrower and its Subsidiaries then may have, and later may come into possession of Excluded Information, (2) such Lender has independently and, without reliance on the Borrower or any of its Subsidiaries or Affiliates, the Administrative Agent or any other Agent-Related Persons, has made its own analysis and determination to participate in such assignment notwithstanding such Lender’s lack of knowledge of the Excluded Information, (3) none of the Borrower, Company Parties or any of their respective Affiliates shall be required to make any representation that it is not in possession of Material Non-Public Information, (4) none of the Borrower or its Subsidiaries or Affiliates, the Administrative Agent or any other of Administrative Agent’s Related Parties shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against the Borrower and its Subsidiaries and Affiliates, the Administrative Agent and any other of the Administrative Agent’s Related Parties, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information and (5) the Excluded Information may not be available to the Administrative Agent or the other Lenders.
over it (including any self-regulatory authority such as the National Association of Insurance Commissioners), (iv) to the extent that such information becomes publicly available other than as a result of a breach of this Section 11.11, or which becomes available to the Administrative Agent, the Issuing Bank, any Lender or any Related Party of any of the foregoing on a non-confidential basis from a source other than the Borrower, (v) in connection with the exercise of any remedy hereunder or under any other Loan Documents or any suit, action or proceeding relating to this Agreement or any other Loan Documents or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section 11.11, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, or (B) any actual or prospective party (or its Related Parties) to any swap or derivative or similar transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (vii) any rating agency, the CUSIP Service Bureau or any similar organization, in each case only when required by such Person (it being understood that, prior to any such disclosure, such Person shall be informed of the confidential nature of such information), (viii) with the consent of the Borrower or (ix) to any other party hereto. Any Person required to maintain the confidentiality of any information as provided for in this Section 11.11 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such information as such Person would accord its own confidential information.
modification hereof or of any other Loan Document), Borrower and each other Loan Party acknowledges and agrees and acknowledges its Affiliates’ understanding that: (i) (A) the services regarding this Agreement provided by the Administrative Agent, the Arrangers, the Syndication Agents, the Documentation Agents and/or the Lenders are arm’s-length commercial transactions between Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent, the Arrangers, the Syndication Agents, the Documentation Agents and the Lenders, on the other hand, (B) each of Borrower and the other Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate, and (C) Borrower and each other Loan Party is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Administrative Agent, the Arrangers, the Syndication Agents, the Documentation Agents and the Lenders is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary, for Borrower, any other Loan Party, or any of their respective Affiliates, or any other Person and (B) neither the Administrative Agent nor any of the Arrangers, the Syndication Agents, the Documentation Agents or any Lender has any obligation to Borrower, any other Loan Party or any of their Affiliates with respect to the transaction contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, each of the Arrangers, the Syndication Agents, the Documentation Agents and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Borrower, the other Loan Parties and their respective Affiliates, and neither of the Administrative Agent nor any of the Arrangers, the Syndication Agents, the Documentation Agents or the Lenders has any obligation to disclose any of such interests to Borrower, any other Loan Party of any of their respective Affiliates. To the fullest extent permitted by Law, each of Borrower and the other Loan Parties hereby waive and release, any claims that it may have against the Administrative Agent and each of the Arrangers, the Syndication Agents, the Documentation Agents and each Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
In connection with the foregoing, the Administrative Agent shall, upon the Borrower’s reasonable request and at the Borrower’s sole expense, (x) promptly execute and file in the appropriate location and deliver to the Borrower such termination and full or partial release statements or confirmations thereof, as applicable, and (y) take such other actions as are reasonably necessary to release the Liens and the Loan Parties from the Guaranty to be released pursuant hereto promptly upon the effectiveness of any such release.
To the extent that that the Loan Documents provide support, through a guarantee or otherwise, for Hedging Transactions or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and, each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the FDIC under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following:
(i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
(ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
(iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
(signature pages redacted)
EXHIBIT B TO RESTATEMENT AGREEMENT
RESIGNATION AND APPOINTMENT AGREEMENT
This Resignation and Appointment Agreement, dated as of November 1, 2021 (the “Resignation and Appointment Agreement”), is delivered pursuant to certain Second Restatement Agreement by and among EVO PAYMENTS INTERNATIONAL, LLC, a Delaware limited liability company (the “Company” or the “Borrower”), the Guarantors thereunder and as defined therein, CITIBANK, N.A., as administrative agent and Issuing Bank, TRUIST BANK, (“Truist”) as successor administrative agent and issuing bank (in such capacity, the “Successor Administrative Agent”) and the certain Lenders party thereto (which amends and restates that certain Amended and Restated First Lien Credit Agreement dated as of June 18, 2018 (as further amended, restated, supplemented and/or otherwise modified prior to the date hereof and amended and restated pursuant to the Second Restatement Agreement, the “Second Amended and Restated Credit Agreement”) by and among the Borrower, the Guarantors party thereto, Citibank, N.A., as resigning administrative agent, resigning swingline lender and resigning collateral agent (in such respective capacities, the “Resigning Agent”), TRUIST BANK as Successor Administrative Agent and the Borrower. Each capitalized term used but not defined in this Resignation and Appointment Agreement shall have the meaning given to it in the Second Amended and Restated Credit Agreement.
This Resignation and Appointment Agreement shall become effective on the date hereof upon the satisfaction of the following conditions precedent (it being acknowledged that each of the following conditions have been satisfied as of the date hereof, the “Resignation Date”): (a) the execution and delivery of this Resignation and Appointment Agreement by the Company, the Resigning Agent, and the Successor Administrative Agent and (b) the Company shall have paid (or cause to have been paid) to the Resigning Agent the costs, expenses, accrued and unpaid fees and other amounts owed to Citi in its capacity as Resigning Agent pursuant to the Loan Documents (other than contingent obligations for which no claim has been made) to the extent invoiced at least two (2) Business Days prior to the Resignation Date.
As of the Resignation Date, (i) Citi hereby delivers notice to the Company and the Lenders of its resignation as Administrative Agent as provided under Section 9.7 of the Second Amended and Restated Credit Agreement and shall have no further obligations under the Loan Documents in such capacity; (ii) Citi hereby, except as otherwise provided herein, relinquishes its respective rights, powers and privileges as Administrative Agent under the Loan Documents; (iii) the Required Lenders, pursuant to the Second Restatement Agreement and the Second Amended and Restated Credit Agreement, have appointed Truist as successor Administrative Agent under the Second Amended and Restated Credit Agreement and the other Loan Documents; (iv) pursuant to the Amended and Restated Agreement, the Required Lenders, the Company and the other Loan Parties have waived any notice requirement provided for under the Loan Documents in respect of such resignation or appointment; (v) the Company and the other Loan Parties hereby consent to the appointment of Truist as Administrative Agent under the Second Amended and Restated Credit Agreement and the other Loan Documents; (vi) Truist hereby accepts its appointment as Administrative Agent and (vii) Citi shall remain (and has agreed to remain, notwithstanding anything to the contrary in the Amended and Restated Agreement or Second Amended and Restated Credit Agreement) party to the Second Amended and Restated Credit Agreement and continues to have all the rights and obligations of an Issuing Bank under the Second Amended and Restated Credit Agreement with respect to Letters of Credit issued by it prior to the Resignation Date.
The parties hereto acknowledge and agree that: (a) the Successor Administrative Agent shall bear no responsibility for any actions taken or omitted to be taken by the Resigning Agent while the Resigning Agent served as Administrative Agent under the Second Amended and Restated Credit Agreement and the other Loan Documents, and the Resigning Agent shall bear no responsibility for any actions taken or omitted to be taken by the Successor Administrative Agent under the Second Amended and Restated Credit Agreement or any other Loan Document, (b) the Successor Administrative Agent succeeds to the rights and obligations of the Administrative Agent under the Second Amended and Restated Credit Agreement and
the other Loan Documents and becomes vested with all of the rights, powers, privileges and duties of the Administrative Agent under the Amended and Restated Credit Agreement and each other Loan Document, and the Resigning Agent is discharged from all of its duties and obligations as Administrative Agent under the Second Amended and Restated Credit Agreement and the other Loan Documents, in each case, as of the Resignation Date, and (c) from and after the Resignation Date, the provisions of Article 9 and Section 11.3 of the Second Amended and Restated Credit Agreement, to the extent they pertain to the Resigning Agent, continue in full force and effect for the benefit of the Resigning Agent, its sub-agents and their respective Affiliates in respect of (i) any actions taken or omitted to be taken by any of them while Resigning Agent was acting as the Administrative Agent under the Loan Documents, (ii) this Resignation and Appointment Agreement and (iii) any agreements, consents, terminations, or assignments executed and delivered by the Resigning Agent after the Resignation Date at the request of the Successor Administrative Agent or the Company to evidence, record or give effect to the resignations set forth herein and the vesting of Liens on the Collateral in the Successor Administrative Agent.
Each of the Successor Administrative Agent, the Resigning Agent, the Company and the other Loan Parties hereby represent and warrant on and as of the date hereof and on and as of the Resignation Date that it is legally authorized to enter into and has duly executed and delivered this Resignation and Appointment Agreement.
Nothing herein shall constitute an assumption by the Successor Administrative Agent of any liability of the Resigning Agent arising out of a breach by the Resigning Agent of its obligations under the Amended and Restated Credit Agreement or any other Loan Document prior to the discharge of its duties under the Amended and Restated Credit Agreement or the other Loan Documents to which it was a party immediately prior to giving effect to this Resignation and Appointment Agreement. Upon the effectiveness of this Agreement, the Company, the Resigning Agent and the Successor Administrative Agent agree that the Resigning Agent (along with its agents, representatives, officers, directors, advisors, employees, subsidiaries, Affiliates) will be released from all liability arising out of any matter, cause, circumstance or event related to the Loan Documents (collectively, the “Claims”), in each case except to the extent that a court of competent jurisdiction determines that any Claim results primarily from the gross negligence or willful misconduct of the Resigning Agent (or its agents, representatives, officers, directors, advisors, employees, subsidiaries, Affiliates) on or prior to the Resignation Date.
The Company, the Resigning Agent and the Successor Administrative Agent agree that, following the Resignation Date, the Resigning Agent shall furnish promptly, at the Company’s expense, such other documents, instruments and agreements as may be reasonably requested by the Company or the Successor Administrative Agent from time to time, and shall take such further action as may be necessary or reasonably requested by the Company or the Successor Administrative Agent, in each case in order to effect the matters contemplated by this Resignation and Appointment Agreement. The Borrower shall promptly reimburse the Resigning Agent for all costs and expenses incurred by the Resigning Agent after the Resignation Date in connection with any actions taken pursuant to this Resignation and Appointment Agreement.
In furtherance of the assignment herein of the Resigning Agent’s security interest in the Collateral of the Loan Parties under the Second Amended and Restated Credit Agreement and the other Loan Documents, the Resigning Agent, the Company and the other Loan Parties hereby agree to execute and deliver such other documents, certificates and instruments as the Successor Administrative Agent shall reasonably request in order to perfect and protect the Successor Administrative Agent’s interest in such security interests and, without limiting the generality of the foregoing, the Resigning Agent hereby authorizes the Successor Administrative Agent to (i) file the UCC-3 financing statements in the form attached as Schedule 1 hereto, assigning of record any financing statements with respect to security interests created under the Loan Documents to the Successor Administrative Agent and (ii) file the IP assignment
- 165 -
agreements in the form attached as Schedule 2 hereto, assigning of record any security interests in intellectual property created under the Loan Documents to the Successor Administrative Agent. On the Resignation Date, the Resigning Agent shall deliver to the Successor Administrative Agent any certificated securities, instruments or other Collateral in its physical possession or in the possession of its agents or designees listed on Schedule 3 hereto (such certificates, instruments or other Collateral, the “Possessory Collateral”) and the Resigning Agent represents that, to its knowledge, it is not in possession of any certificated securities, instruments or other Collateral that were delivered to it pursuant to the Amended and Restated Credit Agreement other than the Possessory Collateral.
In the event that, after the Resignation Date, the Resigning Agent receives any principal, interest or other amount owing to any Lender or the Successor Administrative Agent or a Loan Party under the Amended and Restated Credit Agreement or any other Loan Document (other than any such amount payable to it in its capacity as a Lender or Issuing Bank), or receives any instrument, agreement, report, financial statement, insurance policy, notice or other document in its capacity as Resigning Agent, the Resigning Agent agrees to promptly forward the same to the Successor Administrative Agent as specified by the Successor Administrative Agent in writing and to hold the same in trust for the Successor Administrative Agent or such Loan Party, as the case may be, until so forwarded. In the event that, after the Resignation Date, the Successor Administrative Agent receives any amount owing to the Resigning Agent under the Amended and Restated Credit Agreement, any other Loan Document or this Resignation and Appointment Agreement, the Successor Administrative Agent agrees that such payment shall be held in trust for the Resigning Agent, and the Successor Administrative Agent shall return such payment to the Resigning Agent.
The Borrower (a) hereby confirms its guaranty of the Obligations pursuant to the Second Amended and Restated Credit Agreement and (b) hereby confirms its pledge and grant of security interests thereunder, in each case, under and subject to the terms of each of the Collateral Documents, and agrees that, notwithstanding the effectiveness of this Resignation and Appointment Agreement and the Transactions and the Second Amended and Restated Credit Agreement, any such guaranty, pledge and grant of security interest, and the terms of each of the Collateral Documents, shall continue to be in full force and effect, shall not be novated and shall continue to secure and guarantee, among other things, all obligations under the Second Amended and Restated Credit Agreement. In addition, the Borrower acknowledges and agrees that as of the Resignation Date the Successor Administrative Agent shall succeed to all the rights, benefits and interests of the Resigning Agent under the pledge, security interest, guarantee and other Loan Documents and that on and after the Resignation Date all references in any Credit Document to “collateral agent” or “administrative agent” or “Administrative Agent” shall mean the Successor Administrative Agent and its successors and assigns.
For all purposes under the Loan Documents, until further notice in accordance with Section 11.1 of the Second Amended and Restated Credit Agreement, the following address and account details are to be used for purposes of communications to the Successor Administrative Agent pursuant to the Second Amended and Restated Credit Agreement or other Loan Documents:
Truist Bank
3333 Peachtree Road
Atlanta, Georgia 30326
Attention: Brooks Asger
Telecopy Number: Brooks.Asger@Truist.com
With a copy to
(not constituting notice):
- 166 -
Truist Bank
Agency Services
303 Peachtree Street, N.E. / 25th Floor
Atlanta, Georgia 30308
Attention: Agency Services Manager
Telecopy Number: Agency.Services@Truist.com
With a copy to:
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attn: Alfred Xue
E-mail address: alfred.xue@lw.com
THIS RESIGNATION AND APPOINTMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. SECTION 11.5 OF THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT IS HEREBY INCORPORATED BY REFERENCE INTO THIS RESIGNATION AND APPOINTMENT AGREEMENT AND SHALL APPLY TO THIS RESIGNATION AND APPOINTMENT AGREEMENT, MUTATIS MUTANDIS.
This Resignation and Appointment Agreement may be executed in any number of separate counterparts by the parties hereto (including by telecopy or via electronic mail), each of which counterparts when so executed shall be an original, but all of such counterparts together shall constitute but one and the same instrument.
Section 11.6 of the SECOND Amended and Restated Credit Agreement is hereby incorporated by reference herein MUTATIS MUTANDIS.
[Remainder of page left intentionally blank]
- 167 -
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Resignation and Appointment Agreement to be duly executed and delivered as of the date first written above.
CITIBANK,
as Resigning Agent
By: ____________________________________
Name:
Title:
- 168 -
TRUIST SECURITIES, INC.,
as Successor Administrative Agent
By: ____________________________________
Name:
Title:
- 169 -
EVO PAYMENTS INTERNATIONAL, LLC,
as Borrower
By: _____________________________
Name:
Title:
|
|
|
|
|
|
|
|
|
- 170 -
|
Schedule 1
UCC-3 Financing Statements
- 171 -
Schedule 2
IP Assignment Agreements
- 1 -
Schedule 3
Possessory Collateral
- 2 -
EXHIBIT C TO SECOND RESTATEMENT AGREEMENT
[CREDIT AGREEMENT SCHEDULES]
- 3 -
EXHIBIT D TO SECOND RESTATEMENT AGREEMENT
[CREDIT AGREEMENT EXHIBITS]
Exhibit 2.3
[FORM OF] NOTICE OF REVOLVING BORROWING
[Date]
TRUIST BANK
3333 Peachtree Road
Atlanta, Georgia 30326
Attention: Brooks Asger
E-mail address: Brooks.Asger@Truist.com
To Whom It May Concern:
Reference is made to that certain Second Amended and Restated Credit Agreement dated as of November 1, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Second Amended and Restated Credit Agreement”), by and among the Borrower, the Guarantors thereunder and as defined therein, certain Lenders party thereto and TRUIST BANK (“Truist”) as Administrative Agent. Capitalized terms used herein but not otherwise defined herein shall have the meanings provided in the Second Amended and Restated Credit Agreement.
This notice constitutes a Notice of Revolving Borrowing. The Borrower hereby requests a Revolving Loan under the Second Amended and Restated Credit Agreement, and in connection therewith the Borrower specifies the following information with respect to the Revolving Loan requested hereby:
(A) | Aggregate principal amount of Revolving Loan1: |
(B)Date of Revolving Loan (which is a Business Day):
(C)Type of Revolving Loans comprising such Borrowing2:
(D)Interest Period3:
(E)Applicable Currency:
1 In the case of a Eurodollar Borrowing, not less than $1,000,000 or a larger multiple of $100,000; in the case of a Base Rate Borrowing, not less than $100,000 or a larger multiple of $100,000. In the case of any Revolving Borrowing in an aggregate principal amount not to exceed $40,000,000.
2 (i) Base Rate Loans or Eurodollar Loans denominated in Dollars, (ii) Eurodollar Loans denominated in Euros, (iii) Eurodollar Loans denominated in Mexican Pesos and (iii) RFR Loans denominated in Sterling.
3 Which must comply with the definition of “Interest Period” and end not later than the Revolving Commitment Termination Date, except as otherwise provided in clause (e) of the definition of “Interest Period” in the Second Amended and Restated Credit Agreement.
(F)Class of Commitments: [Dollar Commitments] [Multicurrency Commitments]
(G)Location and number of Borrower’s account to which proceeds of such Revolving Loan are to be disbursed:
The Borrower hereby represents and warrants that the conditions specified in Section 3.3 of the Credit Agreement are satisfied.
Very truly yours,
EVO PAYMENTS INTERNATIONAL, LLC, a Delaware limited liability company
By:
Name:
Title:
Exhibit 2.7
[FORM OF] NOTICE OF CONVERSION/CONTINUATION
[Date]
TRUIST BANK
3333 Peachtree Road
Atlanta, Georgia 30326
Attention: Brooks Asger
E-mail address: Brooks.Asger@Truist.com
To Whom It May Concern:
Reference is made to certain Second Amended and Restated Credit Agreement dated as of November 1, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Second Amended and Restated Credit Agreement”), by and among the Borrower, the Guarantors thereunder and as defined therein, certain Lenders party thereto and TRUIST BANK (“Truist”) as Administrative Agent. This notice constitutes a Notice of Conversion/Continuation. The Borrower hereby requests a continuation or conversion under the Second Amended and Restated Credit Agreement, and in connection therewith the Borrower specifies the following information with respect to the continuation or conversion requested hereby:
(A)Aggregate principal amount of the Borrowing to be continued or converted1:
(B)Date of continuation or conversion (which is a Business Day):
(C)Type of Loans comprising such Borrowing2:
(D)Applicable Currency:
(E)Class of Commitments: [Dollar Commitments] [Multicurrency Commitments]
1 In the case of a Eurodollar Borrowing, not less than $1,000,000 or a larger multiple of $100,000; in the case of a Base Rate Borrowing, not less than $100,000 or a larger multiple of $100,000.
2 (i) Base Rate Loans or Eurodollar Loans denominated in Dollars, (ii) Eurodollar Loans denominated in Euros, (iii) Eurodollar Loans denominated in Mexican Pesos and (iii) RFR Loans denominated in Sterling..
(F)Interest Period3:
Very truly yours,
EVO PAYMENTS INTERNATIONAL, LLC, a Delaware limited liability company
By:
Name:
Title:
3 Which must comply with the definition of “Interest Period” and, in the case of a Revolving Loan, end not later than the Revolving Commitment Termination Date, except as otherwise provided in clause (e) of the definition of “Interest Period” in the Second Amended and Restated Credit Agreement.
Exhibit 2.10
[FORM OF] NOTE
__________, _____
FOR VALUE RECEIVED, EVO PAYMENTS INTERNATIONAL, LLC, a Delaware limited liability company (the “Borrower”), hereby promises to pay to _____________________________or its registered assigns (the “Lender”), in accordance with the provisions of the Second Amended and Restated Credit Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to the Borrower under the Second Amended and Restated Credit Agreement dated as of November 1, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Second Amended and Restated Credit Agreement”), by and among the Borrower, the Guarantors thereunder and as defined therein, certain Lenders party thereto and TRUIST BANK (“Truist”) as Administrative Agent. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Second Amended and Restated Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Second Amended and Restated Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Payment Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Second Amended and Restated Credit Agreement.
This Note is one of the Notes referred to in the Second Amended and Restated Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Second Amended and Restated Credit Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF EXCEPT FOR SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed by its duly authorized officer as of the day and year first above written.
EVO PAYMENTS INTERNATIONAL, LLC, a Delaware limited liability company
By:
Name:
Title:
EXHIBIT 2.20-1
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to that certain Second Amended and Restated Credit Agreement dated as of November 1, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Second Amended and Restated Credit Agreement”), by and among the Borrower, the Guarantors thereunder and as defined therein, certain Lenders party thereto and TRUIST BANK (“Truist”) as Administrative Agent.
Pursuant to the provisions of Section 2.20(f) of the Second Amended and Restated Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Second Amended and Restated Credit Agreement and used herein shall have the meanings given to them in the Second Amended and Restated Credit Agreement.
[NAME OF LENDER]
By:
Name:
Title:
Date: __________ ___, 20[ ]
EXHIBIT 2.20-2
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to that certain Second Amended and Restated Credit Agreement dated as of November 1, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Second Amended and Restated Credit Agreement”), by and among the Borrower, the Guarantors thereunder and as defined therein, certain Lenders party thereto and TRUIST BANK (“Truist”) as Administrative Agent.
Pursuant to the provisions of Section 2.20(f) of the Second Amended and Restated Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Second Amended and Restated Credit Agreement and used herein shall have the meanings given to them in the Second Amended and Restated Credit Agreement.
[NAME OF PARTICIPANT]
By:
Name:
Title:
Date: __________ ___, 20[ ]
EXHIBIT 2.20-3
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to that certain Second Amended and Restated Credit Agreement dated as of November 1, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Second Amended and Restated Credit Agreement”), by and among the Borrower, the Guarantors thereunder and as defined therein, certain Lenders party thereto and TRUIST BANK (“Truist”) as Administrative Agent.
Pursuant to the provisions of Section 2.20(f) of the Second Amended and Restated Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Second Amended and Restated Credit Agreement and used herein shall have the meanings given to them in the Second Amended and Restated Credit Agreement.
[NAME OF PARTICIPANT]
By:
Name:
Title:
EXHIBIT 2.20-4
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to that certain Second Amended and Restated Credit Agreement dated as of November 1, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Second Amended and Restated Credit Agreement”), by and among the Borrower, the Guarantors thereunder and as defined therein, certain Lenders party thereto and TRUIST BANK (“Truist”) as Administrative Agent.
Pursuant to the provisions of Section 2.20(f) of the Second Amended and Restated Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Second Amended and Restated Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Second Amended and Restated Agreement and used herein shall have the meanings given to them in the Second Amended and Restated Credit Agreement.
[NAME OF LENDER]
By:
Name:
Title:
Exhibit 2.29(a)
[FORM OF] DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT
TO: | Truist Bank, as Administrative Agent |
RE: | Second Amended and Restated Credit Agreement dated as of November 1, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Second Amended and Restated Credit Agreement”), by and among the Borrower, the Guarantors thereunder and as defined therein, certain Lenders party thereto and TRUIST BANK (“Truist”) as Administrative Agent |
DATE: | [Date] |
Each of ______________________ (the “Designated Borrower”) and the Company hereby confirms, represents and warrants to the Administrative Agent and the Lenders that the Designated Borrower is a Domestic Subsidiary of the Company.
The documents required to be delivered to the Administrative Agent under Section 2.29 of the Second Amended and Restated Credit Agreement will be furnished to the Administrative Agent in accordance with the requirements of the Second Amended and Restated Credit Agreement.
The parties hereto hereby confirm that, with effect from the date of the Designated Borrower Notice for the Designated Borrower, except as expressly set forth in the Second Amended and Restated Credit Agreement, the Designated Borrower shall have obligations, duties and liabilities toward each of the other parties to the Second Amended and Restated Credit Agreement and other Loan Documents identical to those which the Designated Borrower would have had if the Designated Borrower had been an original party to the Loan Documents as a Borrower. Effective as of the date of the Designated Borrower Notice for the Designated Borrower, the Designated Borrower hereby ratifies, and agrees to be bound by, all representations and warranties, covenants, and other terms, conditions and provisions of the Second Amended and Restated Credit Agreement and the other applicable Loan Documents.
The parties hereto hereby request that the Designated Borrower be entitled to receive Loans under the Second Amended and Restated Credit Agreement, and understand, acknowledge and agree that neither the Designated Borrower nor the Company on its behalf shall have any right to request any Loans for its account unless and until the date five (5) Business Days after the effective date designated by the Administrative Agent in a Designated Borrower Notice delivered to the Company and the Lenders pursuant to Section 2.29 of the Second Amended and Restated Credit Agreement.
In connection with the foregoing, the Designated Borrower and the Company hereby agree as follows with the Administrative Agent, for the benefit of the Secured Parties:
1.The Designated Borrower hereby acknowledges, agrees and confirms that, by its execution of this Designated Borrower Request and Assumption Agreement, the Designated Borrower will be deemed to be a party to the Security Agreement, and shall have all the rights and obligations of a “Grantor” (as such term is defined in the Security Agreement) thereunder as if it had executed the Security Agreement. The Designated Borrower hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Security Agreement. Without limiting the generality of the
foregoing terms of this Paragraph 1, the Designated Borrower hereby grants, pledges and assigns to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in, and a right of set off, to the extent applicable, against any and all right, title and interest of the Designated Borrower in and to the Collateral (as such term is defined in Section 2 of the Security Agreement) of the Designated Borrower.
2.The Designated Borrower acknowledges and confirms that it has received a copy of the Second Amended and Restated Credit Agreement and the schedules and exhibits thereto and each Collateral Document and the schedules and exhibits thereto. The information on the schedules to the Second Amended and Restated Credit Agreement and the Collateral Documents are hereby supplemented (to the extent permitted under the Second Amended and Restated Credit Agreement or Collateral Documents) to reflect the information shown on the attached Schedule A.
3.The Company confirms that the Second Amended and Restated Credit Agreement is, and upon the Designated Borrower becoming a party thereto, shall continue to be, in full force and effect. The parties hereto confirm and agree that immediately upon the Designated Borrower becoming a Borrower, the term “Obligations,” as used in the Second Amended and Restated Credit Agreement, shall include all obligations of the Designated Borrower under the Second Amended and Restated Credit Agreement and under each other Loan Document.
4.Each of the Company and the Designated Borrower agrees that at any time and from time to time, upon the written request of the Administrative Agent, it will execute and deliver such further documents and do such further acts as the Administrative Agent may reasonably request in accordance with the terms and conditions of the Second Amended and Restated Credit Agreement and the other Loan Documents in order to effect the purposes of this Designated Borrower Request and Assumption Agreement.
This Designated Borrower Request and Assumption Agreement shall constitute a Loan Document under the Second Amended and Restated Credit Agreement.
THIS DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. The terms of Sections 11.5 and 11.6 of the Second Amended and Restated Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
This Designated Borrower Request and Assumption Agreement may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Agreement by fax transmission or other electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Designated Borrower Request and Assumption Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
[DESIGNATED BORROWER]
By:
Name:
Title:
EVO PAYMENTS INTERNATIONAL, LLC, a Delaware limited liability company
By:
Name:
Title:
Schedule A
Schedules to Second Amended and Restated Credit Agreement and Collateral Documents
[TO BE COMPLETED BY DESIGNATED BORROWER]
Exhibit 2.29(b)
[FORM OF] DESIGNATED BORROWER NOTICE
TO: | Truist Bank, as Administrative Agent |
RE: | Second Amended and Restated Credit Agreement dated as of November 1, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Second Amended and Restated Credit Agreement”), by and among the Borrower, the Guarantors thereunder and as defined therein, certain Lenders party thereto and TRUIST BANK (“Truist”) as Administrative Agent |
DATE: | [Date] |
The Administrative Agent hereby notifies Company and the Lenders that effective as of the date hereof [_________________________] shall be a Designated Borrower and may receive Loans for its account on the terms and conditions set forth in the Second Amended and Restated Credit Agreement.
This Designated Borrower Notice shall constitute a Loan Document under the Second Amended and Restated Credit Agreement.
Delivery of an executed counterpart of a signature page of this Certificate by fax transmission or other electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Certificate.
TRUIST BANK,
as Administrative Agent
By:
Name:
Title:]
Exhibit 5.1
[FORM OF] COMPLIANCE CERTIFICATE
In connection with the terms of that certain Second Amended and Restated Credit Agreement dated as of November 1, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Second Amended and Restated Credit Agreement”), by and among the Borrower, the Guarantors thereunder and as defined therein, certain Lenders party thereto and TRUIST BANK (“Truist”) as Administrative Agent, the undersigned certifies that the following information is true and correct, in all material respects, as of the date of this Compliance Certificate for the Fiscal [Quarter][Year] ended __________, 20___:
Capitalized terms used in this Compliance Certificate but not otherwise defined herein shall have the same meanings provided in the Second Amended and Restated Credit Agreement.
[Use the following paragraph 1 for fiscal year-end financial statements]
1.Attached hereto as Schedule 1 are the audited annual financial statements required by Section 5.1(a) of the Second Amended and Restated Credit Agreement for the Fiscal Year ending [ ] together with the audit report of an independent certified public accountant required by such section.1
[Use the following paragraph 1 for fiscal quarter-end financial statements]
1.Attached hereto as Schedule 1 are the unaudited financial statements required by Section 5.1(b) of the Second Amended and Restated Credit Agreement for the Fiscal Quarter ending [__________, ____].
[Use the following paragraph 2 if delivering the financial statements above not during a Testing Quarter]
2.Set forth on Schedule 2 are detailed calculations of the Consolidated Leverage Ratio for purposes of determining the Applicable Margin.
[Use the following paragraph 2 if delivering the financial statements above during a Testing Quarter]
1 With respect to financial statements delivered pursuant to Section 5.1(a) by EVO Payments, Inc. (or any other parent of the Borrower), upon the written request of the Administrative Agent, such financial statements shall be accompanied by information that explains in reasonable detail the differences between the information relating to EVO Payments, Inc. and its Subsidiaries, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, which information shall be certified by a Responsible Officer of the Borrower as having been fairly presented in all materials respects.
2. Set forth on Schedule 2 are detailed calculations demonstrating compliance with the financial covenant set forth in Article VI of the Second Amended and Restated Credit Agreement.
[Use the following paragraph if delivering the financial statements above during a Testing Quarter]
Since [the Restatement Effective Date/the date of the delivery of the last Compliance Certificate in accordance with Section 5.1(c) of the Second Amended and Restated Credit Agreement], there has been [no change/the changes specified below] with respect to the identity of the Subsidiaries identified to the Lenders on such date.2
[SIGNATURE ON FOLLOWING PAGE]
2 These changes include the designation of any Subsidiary as Restricted or Unrestricted during such period.
The foregoing is true and correct, in all material respects, as of the date hereof.
Dated as of ___________, ____.
EVO PAYMENTS INTERNATIONAL, LLC, a Delaware limited liability company
By:
Name:
Title:
Exhibit 11.4(b)
[FORM OF] ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance (the “Assignment and Acceptance”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Second Amended and Restated Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Second Amended and Restated Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit, guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Second Amended and Restated Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including but not limited to contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the Assignor.
1.Assignor:
2.Assignee:
[and is an Affiliate/Approved Fund of [identify Lender1]
3.Borrower:EVO Payments International, LLC
1 Select if applicable.
4.Administrative Agent:TRUIST BANK, in its capacity as the administrative agent under the Second Amended and Restated Credit Agreement
5.Credit Agreement:Second Amended and Restated Credit Agreement dated as of November 1, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Second Amended and Restated Credit Agreement”), by and among the Borrower, the Guarantors thereunder and as defined therein, certain Lenders party thereto and TRUIST BANK (“Truist”) as Administrative Agent.
6.Assigned Interest:
Aggregate Amount of Commitment/Loans for all Lenders | Amount of Commitment/ Loans Assigned | Percentage Assigned of Commitment/Loans2 |
$ | $ | % |
$ | $ | % |
$ | $ | % |
Effective Date: ___________ ___, 20_____ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Acceptance are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
Title:
2 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
[Consented to and]3 Accepted:
TRUIST BANK,
as Administrative Agent
By:
Title:
[Consented to]4
EVO PAYMENTS INTERNATIONAL, LLC,
as Borrower
By:
Title:
3 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
4 To be added only if the consent of the Borrower is required by the terms of the Credit Agreement.
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ACCEPTANCE
1.Representations and Warranties.
1.1Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Domestic Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2.Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements; if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.1(a) and (b) thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and (v) if it is a Foreign Lender, attached to the Assignment and Acceptance is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3.General Provisions. This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be construed in accordance with and be governed by the Law (without giving effect to the conflict of Law principles thereof except for Sections 5-1401 and 5-1402 of the New York General Obligations Law) of the State of New York.
Exhibit 11.4(i)
[FORM OF] AFFILIATED LENDER ASSIGNMENT AND ACCEPTANCE
This Affiliated Lender Assignment and Acceptance (the “Assignment and Acceptance”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit, guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including but not limited to contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the Assignor.
1.Assignor:
2.Assignee:
[and is [an Affiliated Lender] [Holdings] [Borrower] [Subsidiary]]
3.Borrower:EVO Payments International, LLC
4.Administrative Agent:TRUIST BANK, N.A., in its capacity as the administrative agent under the Credit Agreement
5.Credit Agreement:Second Amended and Restated Credit Agreement dated as of November 1, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Second Amended and Restated Credit Agreement”), by and among the Borrower, the Guarantors thereunder and as defined therein, certain Lenders party thereto and TRUIST BANK (“Truist”) as Administrative Agent.
6.Assigned Interest:
Aggregate Amount of Term Loans for all Lenders | Amount of Term Loans Assigned | Percentage Assigned of Term Loans13 |
$ | $ | % |
$ | $ | % |
$ | $ | % |
Effective Date: ___________ ___, 20_____ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Acceptance are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
Title:
Accepted:
TRUIST BANK,
as Administrative Agent
By:
Title:
13 Set forth, to at least 9 decimals, as a percentage of the Term Loans of all Lenders thereunder.
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
AFFILIATED LENDER ASSIGNMENT AND ACCEPTANCE
1.Representations and Warranties.
1.1Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and (iv) it has delivered customary “big boy” letters to the Assignee (or Auction Agent, as applicable); and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Domestic Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2.Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it is an [Affiliated Lender][Holdings][the Borrower][a Subsidiary of the Borrower], (iii) after giving effect to this Assignment and Acceptance, the aggregate principal amount of all Term Loans held by all Affiliated Lenders does not exceed 20% of the aggregate principal amount of all Term Loans then outstanding, (iv) no proceeds from any Revolving Loan is being used to consummate this Assignment and Acceptance, (v) it has delivered customary “big boy” letters to the Assignor (or Auction Agent, as applicable), (vi) it satisfies the requirements; if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (vii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (viii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (ix) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.1(a) and (b) thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and (x) if it is a Foreign Lender, attached to the Assignment and Acceptance is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee [and (xi) no Event of Default under Section 8.1(a), (b), (h) or (i) of the Credit Agreement shall have occurred or be continuing]14; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, [(ii) it will not receive information provided solely to Lenders by the Administrative Agent or any Lender, other than the
14 To be included if Assignee is Borrower, Holdings or Subsidiary of the Borrower.
right to receive notices of prepayments and other administrative notices in respect of its Loans or Commitments required to be delivered to the Lenders pursuant to Article II of the Credit Agreement, (iii) it will not attend or participate in conference calls or meetings attended solely by the Lenders and the Administrative Agent, (iv) it will not receive advice of counsel to the Administrative Agent and the Lenders)]15 and (v) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3.General Provisions. This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be construed in accordance with and be governed by the Law (without giving effect to the conflict of Law principles thereof except for Sections 5-1401 and 5-1402 of the New York General Obligations Law) of the State of New York.
15 To be included if Assignee is an Affiliated Lender.
EXHIBIT E TO SECOND RESTATEMENT AGREEMENT
[SECURITY AGREEMENT SCHEDULES]